Georgetown law professor Marty Lederman, a former Justice Department official under both the Bush and Clinton administrations, notes the recent signing statement from the White House that essentially states President Bush will ignore the newly authorized Detainee Treatment Act (see December 30, 2005). “So much for the president’s assent to the McCain Amendment” (see December 15, 2005), Lederman writes. Of Bush’s signing statement itself, he writes: “Translation: I reserve the constitutional right to waterboard when it will ‘assist’ in protecting the American people from terrorist attacks.… You didn’t think [Vice President] Cheney and [Cheney’s chief of staff David] Addington (see December 30, 2005) were going to go down quietly, did you?” [Marty Lederman, 1/2/2006; Savage, 2007, pp. 225]

The three Republican senators who co-sponsored the recently passed Detainee Treatment Act prohibiting torture (see December 15, 2005) criticize President Bush for his signing statement indicating that he would not follow the law if he sees fit (see December 30, 2005). Senators John McCain (R-AZ), the primary sponsor of the bill, and John Warner (R-VA) issue a statement rejecting Bush’s signing statement. “We believe the president understands Congress’s intent in passing, by very large majorities, legislation governing the treatment of detainees,” the senators write. “The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our committee intends through strict oversight to monitor the administration’s implementation of the new law.” The third co-sponsor, Senator Lindsey Graham (R-SC), says he agrees with the letter, “and would go a little bit further.” Graham says: “I do not believe that any political figure in the country has the ability to set aside any… law of armed conflict that we have adopted or treaties that we have ratified. If we go down that road, it will cause great problems for our troops in future conflicts because [nothing] is to prevent other nations’ leaders from doing the same.” The White House refuses to respond to the senators’ comments. Law professor David Golove, a specialist in executive power issues, says the senators’ statements “mean that the battle lines are drawn” for an escalating fight over the balance of power between the two branches of government. “The president is pointing to his commander in chief power, claiming that it somehow gives him the power to dispense with the law when he’s conducting war,” Golove says. “The senators are saying: ‘Wait a minute, we’ve gone over this. This is a law Congress has passed by very large margins, and you are compelled and bound to comply with it.’” Elisa Massimino of Human Rights First says the senators’ statements should warn military and CIA interrogators that they could be subject to prosecution if they torture or abuse a detainee, regardless of Bush’s signing statement. “That power [to override the law] was explicitly sought by the White House, and it was considered and rejected by the Congress,” she says. “And any US official who relies on legal advice from a government lawyer saying there is a presidential override of a law passed by Congress does so at their peril. Cruel, inhuman, and degrading treatment is illegal.” Golove notes that it is highly unlikely that Attorney General Alberto Gonzales would prosecute anyone for performing actions Bush had authorized. [Boston Globe, 1/5/2006; Savage, 2007, pp. 225-226]

The American Civil Liberties Union releases documents detailing prisoner abuse at US facilities in Iraq, Afghanistan, and Guantanamo. The documents prove the existence of a “Special Access Program,” involving a special operations unit, Task Force 6-26, that has been implicated in numerous abuse incidents in Iraq, and whose operatives used fake names to thwart an Army investigation. ACLU lawyer Amrit Singh says: “These documents confirm that the torture of detainees and its subsequent cover-up was part of a larger clandestine operation, in all likelihood, authorized by senior government officials. Despite mounting evidence of systemic abuse authorized or endorsed from above, however, not a single high-level official has thus far been brought to justice.” Fake Names, Computer Malfunctions Avoid Accountability - An Army memorandum shows that a prisoner was captured by Task Force 6-26 in Tikrit, Iraq, and subsequently beaten into unconsciousness. The task force members used “fake names,” according to the Army memo, and the claim of a computer malfunction to avoid accountability. SERE Techniques Used - A heavily redacted memo refers to the use of “Survival, Evasion, Resistance, and Escape” procedures at Guantanamo (see December 10, 2002). Sworn statements from military interrogators and a written “Chronology of Guard/Detainee Issues” show that the Army began receiving reports of prisoner abuse from Afghanistan as early as January 2002. The abuse continued, the documents show, through 2004 and perhaps beyond (see February 12-16, 2004, March 28, 2004, and May 6, 2004). Documents detail incidents where US soldiers poured peroxide and water over an Iraqi prisoner’s open wounds, and fired slingshot missiles at Iraqi children attempting to steal food from the base. [American Civil Liberties Union, 1/12/2006]

After Human Rights Watch, an organization which works to end torture of government detainees around the globe, claims that the Bush administration has made a “deliberate policy choice” to abuse detainees at Guantanamo Bay, Defense Secretary Donald Rumsfeld says, “What took place at Guantanamo is a matter of public record today, and the investigations turned up nothing that suggested that there was any policy in the department other than humane treatment.” In 2002, President Bush declared that detainees in US custody should be treated “humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva Conventions (see January 19, 2002). Shortly after Rumsfeld’s statement, White House press secretary Scott McClellan says that Human Rights Watch has damaged its own credibility by making such claims. [New Yorker, 2/27/2006]

A secret witness in the court-martial of a US soldier charged with murdering an Iraqi prisoner (see November 26, 2003 and October 5, 2004) says that the soldier, Chief Warrant Officer Lewis Welshofer, disregarded interrogation rules so casually that he wrote a memo warning his CIA superiors. The witness testifies in open court, but is shielded behind a curtain to protect his identity. (Defense lawyers accidentally exposed the witness’s ties to the CIA during previous questioning.) The testimony is conducted in public after much legal wrangling, with lawyers from the Colorado Springs Gazette and other media outlets insisting that the witness’s testimony be conducted in open court. The witness says Welshofer, accused of smothering the prisoner, did not seem to care. “He said he was pretty sure they were breaking those rules every day.” Earlier witnesses have testified that the techniques used by Welshofer—which included covering the prisoner’s head with a bag, wrapping electrical cord around the bag, sitting on the man’s chest, and covering his mouth—were forbidden by order of CENTCOM commander Lieutenant General Ricardo Sanchez. Another witness, Chief Warrant Officer Todd Sonnek, a Green Beret assigned to interrogations at the makeshift prison near the Syrian border, says that two days before Mowhoush’s death, he witnessed Welshofer bringing CIA and Iraqi paramilitary fighters in to witness his interrogation of the prisoner, which Welshofer called an implementation of the accepted method called “fear-up,” in which an interrogator attempts to terrify a prisoner into divulging information. Welshofer, along with the CIA officials and Iraqi fighters, questioned Mowhoush, and interrupted the questions with insults and slaps. Instead of cowering in fear, Mowhoush became enraged and broke free from his plastic handcuffs. Sonnek says he wrestled Mowhoush to the ground, and everyone in the room joined in beating and kicking Mowhoush. Sonnek testifies that Mowhoush was able to walk unaided back to his cell; other witnesses have said that it took five soldiers to carry him back to it. [Rocky Mountain News, 1/17/2006; Colorado Springs Gazette, 1/19/2006; Rocky Mountain News, 1/24/2006] Welshofer will be convicted, but will not serve jail time or even be discharged from the Army (see January 24, 2006).

Chief Warrant Officer Lewis Welshofer, testifying in his own defense on charges of murdering an Iraqi prisoner (see November 26, 2003 and October 5, 2004), says that he was unsure of what interrogation techniques were acceptable and what were not. He also says that he was under orders to treat prisoners very harshly. He testifies: “Basically [an August 30, 2003 memo] said that as far as they [senior commanders] knew there were no ROE [Rules of Engagement] for interrogations. They were still struggling with the definition for a detainee. It also said that commanders were tired of us taking casualties and they [told interrogators they] wanted the gloves to come off.… Other than a memo saying that they were to be considered ‘unprivileged combatants’ we received no guidance from them [on the status of detainees].” [Human Rights First, 2/2006] Welshofer will be convicted, but will not serve jail time or even be discharged from the Army (see January 24, 2006).

CWO Lewis Welshofer. [Source: Associated Press / Jerilee Bennett / Salon]Chief Warrant Officer Lewis Welshofer is found guilty of causing the death of an Iraqi prisoner, Major General Abed Hamed Mowhoush (see November 26, 2003). Welshofer, who was originally charged with murder (see October 5, 2004), is not found guilty of murder, but of far lesser charges of negligent homicide and negligent dereliction of duty. The court-martial board sentences Welshofer, who sat on Mowhoush’s chest and smothered him to death, to a reprimand, a fine of $6,000, and 60 days’ restriction. He is not sentenced to jail; neither is he discharged from the Army or even reduced in rank. Soldiers in the courtroom audience applaud the sentence. Welshofer’s attorney, Frank Spinner, says after the sentence, “The court understood our argument that this was a very difficult environment in which the 3rd Armored Cavalry Regiment was operating in November 2003.” Army prosecutor Captain Elana Matt had argued for at least two years’ imprisonment and a dishonorable discharge: “Chief Welshofer should have known better, with 19 years in the Army. You heard some bad things about General Mowhoush, but standards don’t apply just to good victims. They apply to everyone. The reputation of the Army has been dishonored at home and abroad.… You may be tempted to believe that this is the kind of guy the Army needs because he gets the job done. Don’t do it, because that would reduce us to the level of our enemies.” But the court was apparently swayed by Welshofer’s denials that he had done anything that could have led to Mowhoush’s death, and by the argument of Spinner and Welshofer’s military lawyer, Captain Ryan Rosauer, who said that Welshofer was confused by hazy interrogation rules (see January 19, 2006), and was merely doing his duty and trying to save lives. For his part, Welshofer begged the panel to allow him to stay out of jail and in the Army. He said that he had “tried to be a loyal soldier, putting the needs of this institution before my own.” [Rocky Mountain News, 1/24/2006; Colorado Springs Gazette, 1/24/2006] Brigadier General David Irvine, a retired intelligence officer who taught prisoner interrogation and military law for 18 years, and human rights activist David Danzig, will call Welshofer’s sentence a “slap on the wrist,” and write that the verdict “spared the defendant, indicted the prosecutor, and found the law irrelevant” (see January 27, 2006). [Salon, 1/27/2006]

Brigadier General David Irvine, a retired intelligence officer who taught prisoner interrogation and military law for 18 years, and human rights activist David Danzig write an angry response to the recent court-martial of Army interrogator Lewis Welshofer. Welshofer was found guilty of negligent homicide in causing the death of an Iraqi prisoner (see November 26, 2003 and October 5, 2004), but was given what Irvine and Danzig consider an absurdly light sentence: a reprimand, a small fine, two months’ restriction, and no jail time (see January 24, 2006). Irvine and Danzig believe that the verdict points to a larger problem: “The Welshofer case puts a fine point on a question that has plagued us since Abu Ghraib: Is the Army institutionally capable of dealing with the debacle of torture? The Army and the nation cannot afford to have soldiers draw the obvious lesson from the case’s nonsensical outcome: that in combat, the ends justify the means, and the Geneva Conventions and the McCain anti-torture amendment are subject to change depending on the circumstances or executive whim. Since the Army seems to have no inclination to enforce the principles of command discipline and accountability among the senior ranks, the corrosive effects of US torture in Iraq and elsewhere will continue to haunt any efforts to regain lost stature and credibility in the world.” [Salon, 1/27/2006]

The Navy’s former general counsel, Alberto Mora, now the general counsel for Wal-Mart’s international operations, ends a long, self-imposed silence about his opposition to the military’s advocacy of torture and abuse of terror suspects (see July 7, 2004). Mora tells New Yorker reporter Jane Mayer that the administration’s legal response to the 9/11 attacks was flawed from the outset, triggering a series of subsequent errors and misjudgments that were virtually impossible to correct. In particular, the determination to ignore the Geneva Conventions “was a legal and policy mistake,” but “very few lawyers could argue to the contrary once the decision had been made.” Mora continues, “It seemed odd to me that the actors weren’t more troubled by what they were doing.” Many administration lawyers seemed to be ignorant of history. “I wondered if they were even familiar with the Nuremberg trials—or with the laws of war, or with the Geneva Conventions. They cut many of the experts on those areas out. The State Department [whose lawyers and officials often opposed the use of abusive interrogation tactics] wasn’t just on the back of the bus—it was left off the bus.… [P]eople were afraid that more 9/11s would happen, so getting the information became the overriding objective. But there was a failure to look more broadly at the ramifications. These were enormously hardworking, patriotic individuals. When you put together the pieces, it’s all so sad. To preserve flexibility, they were willing to throw away our values.” [New Yorker, 2/27/2006]

Senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) file an amicus curiae brief with the Supreme Court in the case of Hamdan v. Rumsfeld (see June 30, 2006) saying that because of the passage of the Detainee Treatment Act (DTA—see December 15, 2005), the Court no longer has jurisdiction over the case. Graham and Kyl argue their point by citing the “legislative history” of the DTA, in particular the official statements Graham and Kyl made during debate over the bill, and specifically an “extensive colloquy” between the two that appears in the Congressional Record for December 21, 2005. Graham and Kyl argue that this “colloquy,” which argues that Guantanamo prisoners have no rights under the standard of habeas corpus, stands as evidence that “Congress was aware” that the DTA would strip the Court of jurisdiction over cases that involve Guantanamo detainees. (The Senate included an amendment written by Graham, Kyl, and Carl Levin (D-MI) to the DTA that would reject habeas claims in future court cases, but does not apply retroactively to cases already filed, such as Hamdan.) However, Graham and Kyl never engaged in such a discussion on the floor of the Senate. Instead, they had the text inserted in the Record just before the law passed (see December 30, 2005), meaning that no one in Congress heard their discussion. The brief indicates that the discussion happened during the debate over the bill when it did not. The Record indicates that the discussion that did take place concerning the Hamdan case comes from Democrats, and explicitly state that the DTA has no bearing on the case. C-SPAN video coverage of the debate proves that Graham and Kyl never made those statements, and Senate officials confirm that the discussion was inserted later into the Record. But in their brief, Graham and Kyl state that “the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet… or are underlined.” The Record shows no such formatting, therefore, says the brief, it must have been live. The debate between Graham and Kyl is even written to make it appear as if it had taken place live, with Graham and Kyl answering each other’s questions, Kyl noting that he is nearing the end of his allotted time, and another senator, Sam Brownback (R-KS) apparently attempting to interject a question. Lawyers for the prosecution will strenuously object to the brief, and Justice Department defense lawyers will use the brief as a centerpiece for their argument that the Supreme Court should throw the case out. [US Supreme Court, 2/2006 ; Slate, 3/27/2006; FindLaw, 7/5/2006] Former Nixon White House counsel John Dean will call the brief “a blatant scam,” and will accuse Graham and Kyl of “misle[ading] their Senate colleagues, but also sham[ing] their high offices by trying to deliberately mislead the US Supreme Court.… I have not seen so blatant a ploy, or abuse of power, since Nixon’s reign.… [Graham and Kyl] brazenly attempted to hoodwink the Court regarding the actions of Congress in adopting the DTA.” [FindLaw, 7/5/2006] Their efforts will not be successful, as the Supreme Court will ultimately rule against the Republican position in Hamdan vs. Rumsfeld (see June 30, 2006).

Robert Grenier, the CIA’s chief counterterrorism officer, is relieved of his position after months of turmoil within the agency’s clandestine service. Grenier has headed the Counterterrorist Center for about a year; he will be offered another position within the agency. The CIA’s semi-official position is that some in the agency, particularly Grenier’s superior officer in the clandestine service, do not consider Grenier to be forceful enough in his approach to handling threats from al-Qaeda and other terrorist organizations. Former CIA counterterrorism chief Vincent Cannistraro says that the official story is not entirely true: Grenier was sacked not because of his lack of aggression towards terrorist organizations, but because he opposed the agency’s rendition program and the torture of suspected terrorists. Cannistraro says: “It is not that Grenier wasn’t aggressive enough, it is that he wasn’t ‘with the program.’ He expressed misgivings about the secret prisons in Europe and the rendition of terrorists.” Cannistraro says Grenier also opposed “excessive” interrogation techniques such as waterboarding. Other sources say that CIA Director Porter Goss believes Grenier may either be the source of some of the leaks that have appeared in recent months in the press, or allowed the leaks to occur. Grenier was the CIA’s station chief in Islamabad, Pakistan, during the 9/11 attacks, and helped the agency plan its covert campaign that preceded the US military’s offensive against al-Qaeda and the Taliban in Afghanistan. From there, he went on to head the newly created Iraq Issues Group within the agency, and was heavily involved in the administration’s Iraq invasion efforts. “The word on Bob was that he was a good officer, but not the one for the job and not quite as aggressive as he might have been,” one official says. Another official says, “The director of NCS [the national clandestine service] decided there was somebody better, perhaps to better match his management vision, so [Grenier] is moving on.” Rumors had Grenier resigning in September 2005 along with the CIA’s second-highest official in the clandestine service, Robert Richer (see September 2, 2005), but those rumors proved to be false. [Washington Post, 2/7/2006; Los Angeles Times, 2/7/2006; Sunday Times (London), 2/12/2006]

The American Civil Liberties Union (ACLU) releases Defense Department documents showing that senior Pentagon officials approved harsh interrogation techniques that FBI agents termed abusive, ineffective, and unlawful. “We now possess overwhelming evidence that political and military leaders endorsed interrogation methods that violate both domestic and international law,” according to ACLU lawyer Jameel Jaffer. “It is entirely unacceptable that no senior official has been held accountable.” One document shows that FBI personnel at Guantanamo questioned harsh methods being used by military interrogators (see May 30, 2003). Another shows that senior Pentagon officials approved interrogation methods considered abusive by FBI agents (see May 5, 2004). The ACLU says that, combined with a memo from Navy general counsel Alberto Mora (see January 15-22, 2003), evidence “show[s] conclusively that Pentagon officials at the highest levels authorized the abuse of prisoners and persisted in their endorsement of unlawful interrogation methods even after FBI and Navy personnel objected to those methods orally and in writing.” The documents released by the ACLU also show that interrogators from the Department of Homeland Security identified themselves as FBI agents while using harsh methods against detainees. One FBI memo observed, “The next time a real agent tries to talk to that guy, you can imagine the result.” The documents also show that while FBI agents expressed concern about the harsh interrogation methods being employed by military and other interrogators, the FBI itself did little to counter such tactics (see January 24, 2004). [American Civil Liberties Union, 2/23/2006]

Jeffrey Rapp, the director of the Joint Intelligence Task Force for Combating Terrorism at the Defense Intelligence Agency, provides a 16-page document supporting the government’s declaration that Ali Saleh Kahlah al-Marri is an enemy combatant (see December 12, 2001). Rapp gives the classified document, originally prepared in September 2004 and partially declassified for the court, to the trial judge presiding over the case, Henry Floyd (see April 6, 2006). The document, informally known as the “Rapp Declarations,” makes an array of charges against al-Marri, including alleging that he “met personally” with Osama bin Laden and was sent to the US to “explore computer-hacking methods to disrupt bank records and the US financial system.” Rapp claims that al-Marri was trained in the use of poisons and had detailed information about poisonous chemicals on his laptop computer, a claim verified by an FBI search. Additionally, Rapp says that al-Qaeda “instructed al-Marri to explore possibilities for hacking into the mainframe computers of banks with the objective of wreaking havoc on US banking records.” Rapp also says that al-Marri’s computer was loaded with “numerous computer programs typically utilized by computer hackers; ‘proxy’ computer software which can be utilized to hide a user’s origin or identity when connected to the Internet; and bookmarked lists of favorite Web sites apparently devoted to computer hacking.” Rapp refuses to cite any sources other than “specific intelligence sources” that are “highly classified.” [Jeffrey M. Rapp, 9/9/2004 ; CNET News, 9/22/2006] While this kind of evidence is routinely dismissed as hearsay evidence inadmissible in court, Floyd rules that because the Supreme Court ruled in Hamdi v. Rumsfeld that hearsay evidence can be used against alleged enemy combatants (see June 28, 2004), the “Rapp Declarations” would be considered. Floyd says that al-Marri’s lawyers will have to provide “more persuasive evidence” that counters the government’s case—a reversal of the usual burden of proof that places the responsibility of proving guilt on the prosecution and not the defense. [CNET News, 9/22/2006]

Court documents filed by the Justice Department allege that accused al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri, a Qatari national, was chosen to come to the US by 9/11 mastermind Khalid Shaikh Mohammed because, in part, al-Marri has a wife and children, and therefore would arouse less suspicion. Al-Marri was taken into federal custody as a material witness to the attacks (see December 12, 2001) and later designated as a “enemy combatant” (see June 23, 2003). The Justice Department is battling a lawsuit filed by al-Marri’s lawyers challenging his detention. According to the Justice Department, al-Marri was told to arrive in the US before the attacks, and to head to Pakistan if he didn’t get inside the US in time. Al-Marri, his wife, and their five children arrived in the US on September 10, 2001, where he began taking courses at Bradley University in Peoria, Illinois. The new details come from declassified portions of a sworn statement that the government is using to justify al-Marri’s indefinite detention. The Bush administration has insisted on limiting the information available to detainees and to the public, but was pressured into releasing the al-Marri information after a federal magistrate told government lawyers in February that “the deck is stacked pretty good in favor of the government to start with,” and thusly he wouldn’t consider evidence about al-Marri that al-Marri and his lawyers were not permitted to view for themselves. The magistrate, Judge Robert Carr, is expected to soon recommend whether al-Marri should continue to be held as an enemy combatant. According to the declassified summary, al-Marri traveled to Dubai in August 2001 and was given somewhere between $10,000 and $13,000 plus $3,000 more for a laptop computer. Al-Marri was allegedly given the money by Mustafa Ahmed al-Hawsawi, an al-Qaeda paymaster and one of Mohammed’s lieutenants who also allegedly helped some of the 9/11 hijackers (see Early-Late June, 2001). When al-Marri was taken into custody, the computer was found to contain files on the manufacture of hydrogen cyanide as well as over a thousand credit card numbers. The documents say that Mohammed communicated about al-Marri’s activities in the US through his brother, Jaralla Saleh Mohamed Kahla al-Marri, currently being held at Guantanamo Bay. Jonathan Hafetz, one of Ali al-Marri’s lawyers, says that not only should al-Marri “been given this information long ago,” but because the government has not offered any evidence to support the summary, the document is little more than hearsay. Carr told government lawyers to either stop using classified information or declassify it so that al-Marri could see it and respond to it. “You need to make your choice, because this deals with a man’s freedom,” Carr tells the Justice Department lawyers. “He has been removed from the battlefield, so to speak, for many years.” [Chicago Tribune, 4/6/2006]

Justice Department prosecutors defend their designation of Ali Saleh Kahlah al-Marri, a Qatari citizen alleged to have been part of the 9/11 planning (see December 12, 2001), as an “enemy combatant.” The government’s “enemy combatant” allegations against al-Marri are contained within documents signed by Jeffrey Rapp, the director of the Pentagon’s Joint Intelligence Task for Combating Terrorism (known as the Rapp Declarations) (see April 5, 2006). The unclassified portion of the allegations states almost verbatim the same charges against al-Marri that were dropped in 2003—setting up fake bank accounts, stealing credit cards, and keeping pro-terrorist literature and photos on his computer (see June 23, 2003). The government says it has more evidence tying al-Marri to the 9/11 plot, but that evidence remains classified, so neither al-Marri nor his lawyers can see it. While al-Marri’s lawyers protest that the evidence is “triple hearsay” and inadmissible in court, the judge rules otherwise. Slate’s Emily Bazelon will report, “The declassified allegations aren’t revelatory.” The material attempts to link al-Marri to the 9/11 plotters through Khalid Shaikh Mohammed, the lead plotter for the attacks. It still is not clear in the newly released evidence who the sources of the information are, but it seems that much of the evidence against al-Marri comes from interrogation sessions held with Mohammed himself. Bazelon observes, “[I]t’s also a safe bet that evidence against al-Marri was obtained through torture.” Such evidence is legally inadmissable as well. Mohammed and other witnesses subjected to illegal interrogation methods can “certainly not be used as witnesses, because that could expose classified information and could open up charges from defense lawyers that their earlier statements were a result of torture,” says a government official. [Slate, 4/20/2006]

The Italian government says it will not ask for the extradition of 22 CIA officers sought by Italian prosecutors in connection with the kidnapping of radical imam Hassan Mustafa Osama Nasr (a.k.a. Abu Omar, see Noon February 17, 2003 and June 23, 2005 and After). Approving such a request is “usually a formality” according to the Washington Post, but the decision is delayed for months and then finally made by Italian Justice Minister Roberto Castelli immediately after the government of Prime Minister Silvio Berlusconi loses elections, but before it is replaced by a new government. The New York Times comments, “As minister of justice under Prime Minister Silvio Berlusconi—one of the Bush administration’s most loyal supporters in Europe—Mr. Castelli’s refusal to move forward with the extradition comes as no surprise.” Prosecutor Armando Spataro says that the request will be resubmitted to the new Italian government, and the CIA officers may be tried in absentia. [Washington Post, 12/6/2005; New York Times, 4/12/2006] The request is resubmitted, but by the time the CIA officers are committed for trial in 2007, the new government will not have passed it on to the US (see February 11, 2007). [CNN, 2/16/2007]

Harper’s reporter Ken Silverstein reports on a quiet but widespread swell of resistance among CIA personnel to the Bush administration’s detention and torture policies. A former senior agency official tells Silverstein that there is a “big swing” in sentiments away from supporting the administration at Langley. “I’ve been stunned by what I’m hearing,” he says. “There are people who fear that indictments and subpoenas could be coming down, and they don’t want to get caught up in it.” The former official says there “seems to be a quiet conspiracy by rational people” at the CIA to avoid involvement in the worst of the administration’s policies, particularly the “rendition” of prisoners to foreign countries for interrogation and torture. The former official says, “There’s an SS group within the agency that’s willing to do anything and there’s a Wehrmacht group that is saying, ‘I’m not gonna touch this stuff.’” Lawyer and human rights activist Scott Horton confirms Silverstein’s reporting, saying that he too is hearing stories of growing dissent at the CIA. Horton says: “When the sh_t hits the fan, the administration scapegoats lower-level people. It doesn’t do a lot in terms of inspiring confidence.” [Harper's, 4/19/2006]

Bisher al-Rawi, a long-time British resident originally from Iraq, has been held in the Guantanamo prison since March 2003. He had previously worked as an informant for MI5, a British intelligence agency. MI5 had the CIA arrest him based on information it knew to be false, apparently in an attempt to pressure him to resume working as an informant. Al-Rawi had been keeping his MI5 ties secret, but in March 2006 his lawyer exposes them in an article in The Independent. A similar article soon appears in the Washington Post. [Independent, 3/16/2006; Washington Post, 4/2/2006] That same month, he sues the British government for passing false information about him to the CIA. The British had been refusing to help him get released from Guantanamo on the grounds that he is a British resident and not a British citizen. But on April 20, it is reported that British Foreign Secretary Jack Straw has formally written to the US and demanded his release. The Guardian reports, “Government officials [do] not deny that Mr. Straw’s change of heart was to do with Mr. al-Rawi’s links with MI5.” Al-Rawi’s lawyer says: “I see this as a positive development. I’m only left to ask the question what took so long. Did they need the judicial challenge to do the right thing?” [Guardian, 4/20/2006]

A simulation of waterboarding arranged by ABC News. [Source: ABC News]According to an ABC News report in September 2007, CIA Director Michael Hayden bans the use of waterboarding some time in 2006, with the approval of the White House. It is not known when exactly the technique is banned that year, but presumably it takes place after Hayden becomes CIA director (see May 5, 2006) and in response to the Supreme Court decision mandating that terror suspects must be given treatment consistent with the Geneva Conventions (see July 12, 2006). Waterboarding is a harsh interrogation technique that simulates drowning and is usually referred to as torture. Allegedly, the CIA last used waterboarding in 2003 on Khalid Shaikh Mohammed and “It is believed that waterboarding was used on fewer than five ‘high-value’ terrorist subjects” (see May 2002-2003). John Sifton of Human Rights Watch later says the ban “a good thing, but the fact remains that the entire [CIA interrogation] program is illegal.” [ABC News, 9/14/2007] Over a year before Hayden’s decision, Justice Department official Daniel Levin had himself subjected to simulated waterboarding to help him determine if waterboarding was indeed torture (see Late 2004-Early 2005). Levin intended to issue a memo condemning the practice as beyond the bounds of the law, but was forced out of the Justice Department before he could make that ruling.

Army documents released by the American Civil Liberties Union (ACLU) reveal that Lieutenant General Ricardo Sanchez, the former commander of US forces in Iraq, ordered military interrogators to “go to the outer limits” to get information from detainees (see May 19, 2004). The documents also show that senior government officials were aware of abuse in Iraq and Afghanistan before the Abu Ghraib scandal broke. ACLU executive director Anthony Romero says: “When our leaders allow and even encourage abuse at the ‘outer limits,’ America suffers. A nation that works to bring freedom and liberty to other parts of the world shouldn’t stomach brutality and inhumanity within its ranks. This abuse of power was engineered and accepted at the highest levels of our government.” The ACLU also releases an April 2004 information paper entitled “Allegations of Detainee Abuse in Iraq and Afghanistan” that outlined the status of 62 investigations of detainee abuse at Abu Ghraib (see April 2, 2004). According to the ACLU, the documents show that, far from being the work of “a few bad apples” as alleged by President Bush and other White House officials (see Mid-May 2004, August 2004, September 10, 2004, and October 1, 2004), the torture and abuse of prisoners at Abu Ghraib was systematic and authorized by high-level officials, including Sanchez. “These documents are further proof that the abuse of detainees was widespread and systemic, and not aberrational,” says ACLU attorney Amrit Singh. “We know that senior officials endorsed this abuse, but these officials have yet to be held accountable.” Other documents show that US soldiers escaped prosecution after killing a detainee in their custody (see March 3, 2005), several reports of detainee abuse are considered “true/valid” (see May 25, 2004), and a military doctor cleared a detainee for further interrogations even after documenting injuries inflicted by beatings and electric shocks (see June 1, 2004). [American Civil Liberties Union, 5/2/2006]

Zacarias Moussaoui on his way to the Supermax prison. [Source: WNBC / Jonathan Deinst]Zacarias Moussaoui is sentenced to life in prison for his role in the 9/11 attacks. A jury sentences him to six consecutive life terms without the possibility of parole. A single juror votes against the death penalty for one of the three counts for which Moussaoui is eligible to receive the death sentence (see March 6-May 4, 2006). For the other two counts, the vote is 10-2. According to the foreman of the jury, the lone dissenter did not identify his or herself to the other jurors during deliberations and consequently they could not discuss the person’s reasons for opposing the death penalty. “But there was no yelling. It was as if a heavy cloud of doom had fallen over the deliberation room, and many of us realized that all our beliefs and our conclusions were being vetoed by one person,” the foreman explains to the Washington Post. “We tried to discuss the pros and cons. But I would have to say that most of the arguments we heard around the deliberation table were [in favor of the death penalty]… Our sense was this was a done deal for that person and whoever that person is, they were consistent from the first day and their point of view didn’t change.” [Washington Post, 5/12/2006] As a result of the vote, Moussaoui will not be executed and instead will serve six life sentences at the Supermax prison in Florence, Colorado. A day after the sentencing, on May 5, Moussaoui files a motion to withdraw his guilty plea. He says that his March 27 testimony that he was supposed to have hijacked a fifth plane on September 11 and fly it into the White House “was a complete fabrication.” At sentencing the judge told him, “You do not have a right to appeal your convictions, as was explained to you when you plead guilty. You waived that right.” [Associated Press, 5/8/2006]

CIA Director Porter Goss abruptly resigns “amid allegations that he and a top aide may have attended Watergate poker parties where bribes and prostitutes were provided to a corrupt congressman.” A senior law enforcement official says, “It’s all about the Duke Cunningham scandal.” Congressman Randall “Duke” Cunningham (R-CA) was sentenced to eight years in prison after pleading guilty in late 2005 to taking millions of dollars in bribes. Goss is replaced by General Michael Hayden, the former director of the NSA. [New York Daily News, 5/6/2006] The Bush administration gives no explanation for the resignation and even Goss publicly describes his own resignation as “just one of those mysteries.” [CNN, 5/6/2006] It is later learned that Goss’s resignation is spurred in part because of the controversy surrounding his chosen CIA Executive Director, Kyle “Dusty” Foggo. Foggo is being investigated for his connections to Cunningham. Both Foggo and Cunningham are being investigated by the office of US Attorney Carol Lam (see November 8, 2002). [Talking Points Memo, 2011] In 2007, former senior CIA analyst Valerie Plame Wilson will write: “Once John Negroponte became the de facto intelligence czar as director of national intelligence (DNI—see February 17, 2005)… Goss’s effectiveness, prestige, and daily access to the president had been considerably diminished. This, in turn, further degraded and undermined the organization he led. During a time of driving massive change, which Goss and other senior intelligence managers were attempting to do at the agency, effective and clear communication with all levels of the organization is critical. Goss failed completely at this task and the cost was high.… [H]e had been a poor fit from the beginning. In an underperforming bureaucracy such as the CIA, a strong leader, respected by the rank and file, is essential to managing needed change and modernization. On a personal note, I was not sorry to see him go.” [Wilson, 2007, pp. 247-248]

The lawsuit brought forth by Khalid el-Masri and the ACLU (see December 6, 2005) is dismissed by US District Judge T.S. Ellis III in Alexandria, who rules that the state secrets privilege (see March 9, 1953) was properly invoked by the US Justice Department. The judge argues that Masri’s “private interests must give way to the national interest in preserving state secrets.” [Washington Post, 5/19/2006]

US officials deny charges leveled by Amnesty International that US interrogators tortured prisoners at the Guantanamo Bay prison. White House officials also say that the administration intends to close the facility as soon as it is practical to do so. Amnesty International’s most recent annual report faults the US for allegedly abandoning human rights concerns in its pursuit of terrorists. State Department spokesman Sean McCormack says Amnesty’s charges are false, and says while the administration wants to close Guantanamo, critics have given no answers as to what to do with the detainees. “At some point in the future, would we all like to see Guantanamo Bay closed down? Absolutely,” he says. “But at the moment, there are dangerous people being held in Guantanamo Bay. These are people that were picked up on battlefields, planning for, engaged in various acts of terrorism around the world. These are individuals who pose a threat potentially not only to American citizens, but citizens from Europe as well as around the world.” America is doing the world a service by detaining these dangerous terrorists, he says (see February 7, 2006). [Voice of America, 5/23/2006]

Brigadier General Richard Formica. [Source: Combined Security Transition Command, Afghanistan]The Defense Department publicly releases the so-called “Formica Report,” a report from two years before (see November 2004) that detailed the findings of an investigation into allegations of detainee abuse at Camp Nama, a US detention facility at Baghdad International Airport in Iraq. The report, overseen by Brigadier General Richard Formica, is made available through a Freedom of Information Act request by the American Civil Liberties Union (ACLU). The investigation found no evidence of any detainees being abused by Army personnel. A Defense Department official says: “This is not new news. The major points and the recommendations [from this report] have been implemented. This is an excellent example of the [Defense Department] doing the right thing; an excellent example of the department implementing the recommendations. You can’t ask for more from your government.” Formica conducted his investigation from May 2004 through November 2004. The official says that one of the most important changes made as a result of the Formica investigation was a clarification of authorized interrogation methods. [Armed Forces Press Service, 6/17/2006]

The American Civil Liberties Union (ACLU) releases Defense Department documents that include reports of suicide attempts by Guantanamo detainees. ACLU executive director Anthony Romero says: “These documents are the latest evidence of the desperate and immoral conditions that exist at Guantanamo Bay. The injustices at Guantanamo need to be remedied before other lives are lost. We must uphold our American values and end indefinite detentions and widespread abuse.” One report documents an attempted suicide by hanging that ended up with the detainee in a persistent “vegetative state” (see April 29, 2003). The ACLU notes that the Defense Department documents support other reports of attempted suicide at Guantanamo (see Summer 2002 and After, Mid-October 2002, October 9, 2003, and December 2003). Pentagon officials called the suicides an “act of asymmetrical warfare” and “a good PR move to draw attention.” The ACLU’s Amrit Singh says: “It is astounding that the government continues to paint the suicides as acts of warfare instead of taking responsibility for having driven individuals in its custody to such acts of desperation. The government may wish to hide Guantanamo Bay behind a shroud of secrecy, but its own documents reveal the hopelessness and despair faced by the detainees who are being held without charge and with no end in sight.” [American Civil Liberties Union, 6/19/2006]

Salim Ahmed Hamdan in 1999. [Source: Pubic domain via the New York Times]In the Hamdan v. Rumsfeld case, the Supreme Court rules 5-3 to strike down the Bush administration’s plans to try Guantanamo detainees before military commissions. Ruling in favor of detainee Salim Ahmed Hamdan (see November 8, 2004), the Court rules that the commissions are unauthorized by federal statutes and violate international law. Writing for the majority, Justice John Paul Stevens says, “The executive is bound to comply with the rule of law that prevails in this jurisdiction.” The opinion throws out each of the administration’s arguments in favor of the commissions, including its assertion that Congress had stripped the Supreme Court of the jurisdiction to decide the case. One of the major flaws in the commissions, the Court rules, is that President Bush unilaterally established them without the authorization of Congress. [New York Times, 6/30/2006] During the oral arguments three months before, Hamdan’s lawyer, Neal Katyal, told the Court: “The whole point of this [proceeding] is to say we’re challenging the lawfulness of the tribunal [the military commissions] itself. This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.” [Savage, 2007, pp. 274-275]Major Defeat for Bush Administration - Civil libertarian and human rights organizations consider the ruling a shattering defeat for the administration, particularly in its assertions of expansive, unfettered presidential authority. Bush says in light of the decision, he will work with Congress to “find a way forward” to implement the commissions. “The ruling destroys one of the key pillars of the Guantanamo system,” says Gerald Staberock, a director of the International Commission of Jurists. “Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole.” The ruling also says that prisoners held as “enemy combatants” must be afforded rights under the Geneva Conventions, specifically those requiring humane treatment for detainees and the right to free and open trials in the US legal system. While some form of military trials may be permissible, the ruling states that defendants must be given basic rights such as the ability to attend the trial and the right to see and challenge evidence submitted by the prosecution. Stevens writes that the historical origin of military commissions was in their use as a “tribunal of necessity” under wartime conditions. “Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections.” [New York Times, 6/30/2006] In 2007, author and reporter Charlie Savage will write, “Five justices on the Supreme Court said Bush had broken the law.” [Savage, 2007, pp. 275]Hardline Conservative Justices Dissent - Stevens is joined by Justices David Souter, Stephen Breyer, and Ruth Bader Ginsburg. Justice Anthony Kennedy issues a concurring opinion. Dissenting are Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Thomas, in a dissent signed by Scalia and Alito, calls the decision “untenable” and “dangerous.” Chief Justice John Roberts recused himself from the case because of his participation in a federal appeals court that ruled in favor of the administration (see November 8, 2004). Not Charged for Three Years - Hamdan is a Guantanamo detainee from Yemen, captured in Afghanistan in November 2001 and taken to Guantanamo in June 2002. He is accused of being a member of al-Qaeda, in his function as driver and bodyguard for Osama bin Laden. He was not charged with a crime—conspiracy—until mid-2004. [New York Times, 6/30/2006]

Al-Qaeda leader Hassan Ghul is secretly transferred from US custody to Pakistani custody. The Pakistani government will later release him and he will apparently rejoin al-Qaeda. In early 2004, Ghul was captured in Iraq and put in the CIA’s secret prison system (see January 23, 2004). He became a “ghost detainee” because the US refused to admit they even held him. In 2006, the Bush administration decides to close most of the CIA’s secret prisons and transfer most of the important al-Qaeda prisoners to the Guantanamo prison. But Ghul is given to the Pakistani government instead, apparently as a goodwill gesture. According to a 2011 article by the Associated Press, “[T]he move frustrated and angered former CIA officers, who at the time believed Ghul should have been moved to Guantanamo along with 14 other high-value detainees” (See September 2-3, 2006). The ISI, Pakistan’s intelligence agency, promises that it will make sure Ghul is never released. But after only about a year, Pakistan will secretly let Ghul go and he apparently will return to working with al-Qaeda (see (Mid-2007)). [Associated Press, 6/15/2011] Ghul is given to Pakistan even though he is linked to a Pakistani militant group supported by the ISI, Pakistan’s intelligence agency, and the ISI had a history of protecting him from arrest (see (2002-January 23, 2004)). Also, Ghul is released even though he told US interrogators key information about Osama bin Laden’s courier that will eventually prove key to the discovery of bin Laden’s location (see Shortly After January 23, 2004 and Late 2005).

The American Civil Liberties Union (ACLU) accuses the Defense Department of releasing a “whitewash” report on prisoner abuse in Iraq, Afghanistan, and Guantanamo Bay. The “Church report,” compiled in 2004 (see May 11, 2004), has just been released to the public in response to a Freedom of Information Act request from the ACLU. The report’s executive summary was released in 2005, but the entirety of the report has now been made available. “Despite its best efforts to absolve high-ranking officials of any blame, the Church report cannot hide the fact that abusive and unlawful interrogation techniques authorized by Secretary [of Defense Donald] Rumsfeld were used in Guantanamo Bay, Iraq, and Afghanistan,” says ACLU lawyer Amrit Singh. “The facts speak for themselves, and only underscore the need for an independent investigation into command responsibility for the widespread and systemic abuse of detainees held in US custody abroad.” The report only focused on cases closed before September 30, 2004, did not attempt to determine the culpability of senior officials, and used abuse statistics that the Church investigation itself admitted were incomplete and out of date. The ACLU writes that the Church report “skirts the question of command responsibility for detainee abuse, euphemistically labeling official failure to issue interrogation guidelines for Iraq and Afghanistan as a ‘missed opportunity.’ In addition, it references a ‘failure to react to early warning signs of abuse… that should have prompted… commanders to put in place more specific procedures and direct guidance to prevent further abuse.’ The report provides details of how techniques such as ‘stress positions’—authorized by Secretary Rumsfeld for Guantanamo Bay in December 2002—came to be used in Afghanistan and Iraq. It specifically notes, moreover, that the ‘migration’ of interrogation techniques intended for Guantanamo Bay to Iraq was ‘neither accidental nor uncontrolled.’ Yet, the report concludes that there is ‘no link between approved interrogation techniques and detainee abuse.’” [American Civil Liberties Union, 7/3/2006]

The American Civil Liberties Union (ACLU) releases documents that show the Defense Department ignored requests from senior military commanders for clarification regarding interrogation tactics. In January 2003, military commanders in Afghanistan requested clarification from Pentagon officials as to what interrogation methods could be used against prisoners in US custody. Those officials ignored the request (see January 2003). “It is the Defense Department’s responsibility to ensure that prisoners are treated humanely, as the Geneva Conventions require,” says ACLU attorney Jameel Jaffer. “But as these documents show, the Defense Department allowed abusive interrogation practices to flourish.” The documents also show that at least one unit in Afghanistan operated for eight months under rules of interrogation that had been rescinded (see May 2004). In other instances, field and unit commanders came up with their own rules for interrogation. One commander at Guantanamo came up with his own definition of sleep deprivation, according to the documents: “I define ‘sleep deprivation’ as keeping a detainee awake continuously for five or six day’s [sic] straight.” Another unit determined that, if soldiers could be subjected to 20-hour days in training, it should be acceptable to subject prisoners to similar conditions: “If it was okay to subject our soldiers to twenty-hour days, then in our mind’s [sic] it was okay to subject the terrorists to twenty-hour interrogations.” In one instance, a detainee was interrogated for 20 hours every day for almost two months. “These documents further confirm that systemic command failures led to the widespread abuse of detainees held in US custody abroad,” says the ACLU’s Amrit Singh. “Only an independent investigation into detainee abuse can be trusted to hold relevant officials accountable for such failures.” [American Civil Liberties Union, 7/10/2006]

Daniel Dell’Orto. [Source: US Department of Defense]Shortly after the Supreme Court rules that the Geneva Conventions apply to detainees suspected of terrorist affiliations (see June 30, 2006), the Bush administration publicly agrees to apply the Conventions to all terrorism suspects in US custody, and the Pentagon announces that it is now requiring all military officials to adhere to the Conventions in dealing with al-Qaeda detainees. The administration says that from now on, all prisoners in US custody will be treated humanely in accordance with the Conventions, a stipulation that would preclude torture and “harsh interrogation methods.” Until the ruling, the administration has held that prisoners suspected of terrorist affiliations did not have the right to be granted Geneva protections (see February 7, 2002). Lawyer David Remes, who represents 17 Guantanamo detainees, says, “At a symbolic level, it is a huge moral triumph that the administration has acknowledged that it must, under the Supreme Court ruling, adhere to the Geneva Conventions. The legal architecture of the war on terror was built on a foundation of unlimited and unaccountable presidential power, including the power to decide unilaterally whether, when and to whom to apply the Geneva Conventions.” But in the wake of the ruling the administration is pressuring Congress to introduce legislation that would strip detainees of some of the rights afforded them under the Conventions, including the right to free and open trials, even in a military setting. “The court-martial procedures are wholly inappropriate for the current circumstances and would be infeasible for the trial of these alien enemy combatants,” says Steven Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel. Bradbury and Daniel Dell’Orto, the Defense Department’s principal deputy attorney general, have repeatedly urged lawmakers to limit the rights of detainees captured in what the administration terms its war on terrorism. Dell’Orto says Congress should not require that enemy combatants be provided lawyers to challenge their imprisonment. Congressional Democrats have a different view. Senate Judiciary Chairman Patrick Leahy (D-VT) says, “I find it hard to fathom that this administration is so incompetent that it needs kangaroo-court procedures to convince a tribunal of United States military officers that the ‘worst of the worst’ imprisoned at Guantanamo Bay should be held accountable” for crimes. “We need to know why we’re being asked to deviate from rules for courts-martial.” [Washington Post, 7/12/2006]

After prosecutors in Milan, Italy, charge a group of US officials with involvement in the kidnap of Islamist extremist Hassan Mustafa Osama Nasr (a.k.a. Abu Omar—see Noon February 17, 2003), public defenders are appointed for them. However, the US government bars the CIA officials among the accused, who will eventually number 25, from talking to their defenders. [Congressional Quarterly, 8/28/2009]

Actor Kiefer Sutherland as ‘Jack Bauer.’ [Source: Stuff.co.nz]Law professor Phillippe Sands begins a series of interviews with the former staff judge advocate for the US Army in Guantanamo, Lieutenant Colonel Diane Beaver. She is the author of a legal analysis that was used by the Bush administration to justify its extreme interrogation techniques (see October 11, 2002). Sands describes her as “coiled up—mistreated, hung out to dry.” She is unhappy with the way the administration used her analysis, and notes that she was guided in her work at Guantanamo by personnel from the CIA and Defense Intelligence Agency. She believes that some of the interrogation techniques were “reverse-engineered” from a training program called SERE—Survival, Evasion, Resistance, and Escape—though administration officials have denied this. Several Guantanamo personnel were sent to Fort Bragg, SERE’s home, for a briefing on the program (see December 2001, January 2002 and After, Mid-April 2002, Between Mid-April and Mid-May 2002, July 2002, July 2002, July 2002, and August 1, 2002). Military training was not the only source of inspiration. Fox’s television drama 24 came to a conclusion in the spring of 2002, Beaver recalls. One of the overriding messages of that show is that torture works. “We saw it on cable,” Beaver remembers. “People had already seen the first series. It was hugely popular.” The story’s hero, Jack Bauer, had many friends at Guantanamo, Beaver adds. “He gave people lots of ideas.” She recalls in graphic terms how excited many of the male personnel became when extreme interrogation methods were discussed. “You could almost see their d_cks getting hard as they got new ideas,” she will say. “And I said to myself, You know what? I don’t have a d_ck to get hard—I can stay detached.” The FBI and the Naval Criminal Investigative Service refused to become involved in aggressive interrogations, she says (see Late March through Early June, 2002 and December 17, 2002). [Vanity Fair, 5/2008]

Mohamad Farik Amin. [Source: FBI]The US temporarily closes a network of secret CIA prisons around the world and transfers the most valuable prisoners to the US prison in Guantanamo, Cuba, for eventual military tribunals. The prison network will be reopened a short time later (see Autumn 2006-Late April 2007). There were reportedly fewer than 100 suspects in the CIA prisons; most of them are apparently sent back to their home countries while fourteen are sent to Guantanamo. All fourteen have some connection to al-Qaeda. Seven of them reportedly had some connection to the 9/11 attacks. Here are their names, nationalities, and the allegations against them. Khalid Shaikh Mohammed (KSM) (Pakistani, raised in Kuwait). He is the suspected mastermind of 9/11 attacks and many other al-Qaeda attacks. A CIA biography of KSM calls him “one of history’s most infamous terrorists.” Mustafa Ahmed al-Hawsawi (Saudi). He allegedly helped finance the 9/11 attacks. Hambali (Indonesian). He attended a key planning meeting for the 9/11 attacks in Malaysia (see January 5-8, 2000) and is accused of involvement in many other plots, including the 2002 Bali bombings (see October 12, 2002). Khallad bin Attash (a.k.a. Tawfiq bin Attash) (Yemeni). He also attended a key planning meeting for the 9/11 attacks in Malaysia (see January 5-8, 2000) and had a role in other plots such as the 2000 USS Cole bombing (see October 12, 2000). Ali Abdul Aziz Ali (Pakistani, raised in Kuwait). He allegedly helped finance the 9/11 attacks and arranged transportation for some hijackers. His uncle is KSM. Ramzi bin al-Shibh (Yemeni). A member of the Hamburg al-Qaeda cell with Mohamed Atta and other 9/11 hijackers. The CIA calls him the “primary communications intermediary” between the hijackers and KSM. He also attended a key planning meeting for the 9/11 attacks in Malaysia (see January 5-8, 2000). Abd al-Rahim al-Nashiri (Saudi). He is said to have been one of the masterminds of the USS Cole bombing (see October 12, 2000). He also attended a key planning meeting for the 9/11 attacks in Malaysia (see January 5-8, 2000). The remaining seven suspects are alleged to have been involved in other al-Qaeda plots: Abu Zubaida (Palestinian, raised in Saudi Arabia). He is said to be a facilitator who helped make travel arrangements for al-Qaeda operatives. He is also alleged to have organized a series of planned millennium attacks. Ahmed Khalfan Ghailani (Tanzanian). He was indicted for a role in the 1998 African embassy bombings (see 10:35-10:39 a.m., August 7, 1998). He is also said to be an expert document forger. Majid Khan (Pakistani). He lived in the US since 1996 and is said to have worked with KSM on some US bomb plots (see March 5, 2003). Abu Faraj al-Libbi (a.k.a. Mustafa al-‘Uzayti) (Libyan). He allegedly became al-Qaeda’s top operations officer after KSM was captured. Mohamad Farik Amin (a.k.a. Zubair) (Malaysian). He is a key Hambali associate and was allegedly tapped for a suicide mission targeting Los Angeles. Mohammed Nazir Bin Lep (a.k.a. Lillie) (Malaysian). He is a key Hambali associate. He is accused of providing funds for the 2003 bombing of the Marriott hotel in Jakarta, Indonesia (see August 5, 2003). He was allegedly tapped for a suicide mission targeting Los Angeles. Gouled Hassan Dourad (Somali). He allegedly scouted a US military base in Djibouti for a planned terrorist attack. The fourteen are expected to go on trial in 2007. [Knight Ridder, 9/6/2006; Central Intelligence Agency, 9/6/2006; USA Today, 9/7/2006]

The US military issues “a new manual on the treatment of prisoners that explicitly prohibits waterboarding, sexual humiliation, electric shocks, the threatening use of dogs, and other degrading or painful tactics.” This comes the same day President Bush gives a speech acknowledging the existence of a network of secret CIA prisons (see June 16, 2004). Both moves are believed to have been made in an effort to protect US officials from prosecution for possible war crimes. [Knight Ridder, 9/6/2006] Lt. Gen. John Kimmons, the Army’s chief intelligence officer, says, “No good intelligence is going to come from abusive practices.” Newly approved questioning techniques involve mainly psychological approaches, such as making a prisoner fear he may never see his family. [USA Today, 9/6/2006]

Bush acknowledging the secret CIA prison network. [Source: Gerald Herbert / Associated Press]In a speech, President Bush acknowledges a network of secret CIA prisons and announces plans to try 14 top al-Qaeda terrorist suspects in military tribunals. [Knight Ridder, 9/6/2006]Admits Existence of Detainees in CIA Custody - Bush tells his listeners: “In addition to the terrorists held at Guantanamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency.… Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged.… We knew that Abu Zubaida (see March 28, 2002) had more information that could save innocent lives, but he stopped talking.… As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures… The procedures were tough, and they were safe, and lawful, and necessary.… These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful. I cannot describe the specific methods used—I think you understand why.” Bush then adds that Zubaida “began to provide information on key al-Qaeda operatives, including information that helped us find and capture more of those responsible for the attacks on September 11” (see June 2002). Another high-value detainee, 9/11 planner Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003), provided “many details of other plots to kill innocent Americans” (see March 7 - Mid-April, 2003 and August 6, 2007). [Vanity Fair, 12/16/2008; New York Review of Books, 3/15/2009] The 14 prisoners will be put on trial as soon as Congress enacts the Military Commissions Act (MCA—see October 17, 2006), which he is sending to Congress for its approval today. [Savage, 2007, pp. 308-309]Political Reasons to Acknowledge CIA Prisons - The US government has never officially acknowledged the existence of the CIA prisons before, despite numerous media accounts about them. Bush’s speech comes less than two months before midterm Congressional elections and also comes as the White House is preparing new legislation to legalize the CIA’s detention program and shield US officials from prosecution for possible war crimes. Knight Ridder comments that the speech “appeared to be intended to give him more leverage in his negotiations with Congress over how to try suspected terrorists.… In addition to the potential political benefits, Bush had other reasons to make the program public. A Supreme Court ruling in June struck down the administration’s plan to bring terrorist suspects before military tribunals and called into question the legality of secret CIA detentions.” [Knight Ridder, 9/6/2006]Sites Closed Down? - Other administration officials say the CIA prison network has been closed down, at least for the time being. (In fact, it will be reopened a short time later (see Autumn 2006-Late April 2007).) Reportedly, “fewer than 100” suspects had ever been in CIA custody. It is not known who they were or what happened to all of them, but most of them reportedly were returned to their home countries for prosecution. Fourteen “high-value” suspects, including accused 9/11 mastermind Khalid Shaikh Mohammed, were transferred from the secret CIA prisons to the prison in Guantanamo, Cuba in the days just prior to Bush’s speech (see September 2-3, 2006). Torture is 'against [US] Values' - Bush says: “I want to be absolutely clear with our people and the world: The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it—and I will not authorize it.” However, he says the Geneva Conventions’ prohibition against “humiliating and degrading treatment” could potentially cause legal problems for CIA interrogators. Other administration officials say harsh interrogation techniques such as waterboarding were used in the CIA prisons. Such techniques are considered by many to be forms of torture. Bush claims that information gleaned from interrogations in the secret prisons helped thwart attacks on the US and provided valuable information about al-Qaeda operations around the world. [Knight Ridder, 9/6/2006; Washington Post, 9/7/2006]

Shortly after 14 high-ranking al-Qaeda prisoners are transferred from secret CIA prisons to the US-controlled Guantanamo prison in Cuba (see September 2-3, 2006), the International Committee of the Red Cross is finally allowed to interview them. The prisoners include 9/11 mastermind Khalid Shaikh Mohammed, Ramzi bin al-Shibh, Hambali, and Abu Zubaida. The Red Cross has a policy of not publicizing or commenting its findings. However, some US officials are shown the report on the interviews with these prisoners and apparently some of these officials leak information to the New Yorker about one year later. The New Yorker will report, “Congressional and other Washington sources familiar with the report said that it harshly criticized the CIA’s practices. One of the sources said that the Red Cross described the agency’s detention and interrogation methods as tantamount to torture, and declared that American officials responsible for the abusive treatment could have committed serious crimes. The source said the report warned that these officials may have committed ‘grave breaches’ of the Geneva Conventions, and may have violated the US Torture Act, which Congress passed in 1994. The conclusions of the Red Cross, which is known for its credibility and caution, could have potentially devastating legal ramifications.” [New Yorker, 8/6/2007]

Abu Bakker Qassim. [Source: McClatchy News]Abu Bakker Qassim, a Chinese Muslim and a member of that country’s Uighur minority, writes a column for the New York Times concerning what he says is his wrongful imprisonment at the Guantanamo Bay detention facility. Qassim is writing to protest Congress’s consideration of passing legislation that would deny Guantanamo detainees their habeas corpus right to challenge their detentions in federal court. Qassim says he and 17 of his fellow Uighurs fled Chinese government oppression and went to Afghanistan, where they were captured by Pakistani bounty hunters and “sold… to the United States military like animals for $5,000 a head. The Americans made a terrible mistake.” After he and four other Uighurs were granted court hearings, US authorities deported them to Albania. “Without my American lawyers and habeas corpus, my situation and that of the other Uighurs would still be a secret,” he writes. “I would be sitting in a metal cage today. Habeas corpus helped me to tell the world that Uighurs are not a threat to the United States or the West, but an ally. Habeas corpus cleared my name—and most important, it let my family know that I was still alive.” Qassim says that like his fellow Uighurs, he is “a great admirer of the American legal and political systems.” He continues: “I have the utmost respect for the United States Congress. So I respectfully ask American lawmakers to protect habeas corpus and let justice prevail. Continuing to permit habeas rights to the detainees in Guantanamo will not set the guilty free. It will prove to the world that American democracy is safe and well.” [New York Times, 9/17/2006] Because of this editorial, Qassim and four other Uighurs will be dubbed “returning to terrorist activities” by the Pentagon (see January 13-14, 2009).

Senator Barack Obama (D-IL) speaks out against the Military Commissions Act (MCA), which gives the federal government wide latitude to incarcerate and interrogate “terror suspects” without charge or due process of the law (see October 17, 2006). Obama says that “political considerations” for the upcoming midterm elections played a significant role in the timing of the bill, but “what we’re doing here today—a debate over the fundamental human rights of the accused—should be bigger than politics. This is serious. If this was a debate with obvious ideological differences—heartfelt convictions that couldn’t be settled by compromise—I would understand. But it’s not.” Obama notes that in five years of the Bush administration’s system of military tribunals, “not one terrorist has been tried. Not one has been convicted. And in the end, the Supreme Court of the United States found the whole thing unconstitutional (see June 30, 2006), which is why we’re here today. We could have fixed all of this in a way that allows us to detain and interrogate and try suspected terrorists while still protecting the accidentally accused from spending their lives locked away in Guantanamo Bay. Easily. This was not an either-or question.” Congress could have written and passed legislation that would have established “a real military system of justice that would sort out the suspected terrorists from the accidentally accused,” one that would be in line with domestic law and the Geneva Conventions. Instead, “politics won today.… The administration got its vote, and now it will have its victory lap, and now they will be able to go out on the campaign trail and tell the American people that they were the ones who were tough on the terrorists.” Meanwhile, Obama says, questions about the efficacy and legality of the Bush system of justice persist, al-Qaeda and the Taliban are regrouping “while we look the other way,” and the administration is bent on fighting a war in Iraq “that our own government’s intelligence says is serving as al-Qaeda’s best recruitment tool.… This is not how a serious administration would approach the problem of terrorism.” [US Senate, 9/28/2006]

Air Force Colonel Morris Davis. [Source: US Department of Defense]Politically motivated officials at the Pentagon push for convictions of high-profile detainees ahead of the 2008 elections, according to Air Force Colonel Morris Davis, lead prosecutor for terrorism trials at Guantanamo Bay. Davis, whose later resignation is partially caused by this pressure (see July 2007), says the strategic political value of such trials is discussed at a meeting on this day, and that officials prefer “sexy” cases, rather than those that are most solid or ready to go. Davis will later say: “There was a big concern that the election of 2008 is coming up.… People wanted to get the cases going. There was a rush to get high-interest cases into court at the expense of openness.” [Washington Post, 10/20/2007] Davis specifically alleges that Deputy Defense Secretary Gordon England says to him and other lawyers, “We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election.” [Miami Herald, 3/28/2008]

Video footage of Abd al-Hadi al-Iraqi, apparently at a night campsite. [Source: IntelCenter]In autumn 2006, Abd al-Hadi al-Iraqi, said to be an adviser to Osama bin Laden, is captured and then detained in a secret CIA prison (see Autumn 2006). President Bush announced on September 6, 2006 that the secret CIA prisons were emptied, at least temporarily (see September 2-3, 2006 and September 6, 2006), and it is not known if al-Hadi is transferred to CIA custody before or after this announcement. The CIA keeps al-Hadi’s detention secret from not only the public but also from the Red Cross until late April 2007, when it is publicly announced that al-Hadi has been transferred to the US military prison at Guantanamo. Only then is the Red Cross allowed to examine him. President Bush’s September 2006 announcement was in response to a US Supreme Court decision that rules that all detainees, including those like al-Hadi held in secret CIA prisons, are protected by some provisions of the Geneva Conventions. Then in October 2006 Congress passed the Military Commissions Act, which forbids abuse of all detainees in US custody, including those in CIA custody. The CIA claims that it has no legal responsibility to alert the Red Cross about detainees such as al-Hadi, but without notifying watchdog organizations such as the Red Cross, there is no way to really know if detainees being held by the CIA are being illegally abused or not. Mary Ellen O’Connell, a professor of international law at Notre Dame Law School, says al-Hadi’s case raises the possibility that President Bush has secretly given the CIA a new mandate to operate outside the constraints of the Military Commissions Act: “This suggests that the president has signed some sort of additional authority for the CIA.” [Salon, 5/22/2007]

Mohammed Haydar Zammar, an alleged member of al-Qaeda’s Hamburg, Germany, cell with a few of the 9/11 hijackers, is discovered in Syrian custody. It had been known that Zammar was arrested in late 2001 in Morocco and renditioned to Syria for likely torture and interrogation (see October 27-November 2001 and December 2001). However, his imprisonment had never been officially admitted by the Syrian government and his exact location was unknown. But this month, a European Union official monitoring trials in Damascus, Syria, sees Zammar in a state security court and notifies the German Embassy. According to Guel Pinar, Zammar’s lawyer in Germany, if it had not been for the chance encounter, Zammar might have remained out of sight forever. “No one in the world would have known,” she will say. [Washington Post, 2/5/2007] Zammar has been secretly held without trial or charge for five years, but shortly after the sighting, he will be tried and sentenced (see February 11, 2007).

The Guardian reports that after months of secret talks, the US has offered to return nearly all British residents still being held at the Guantanamo prison. However, the British government has refused to accept them. Senior officials say they have no right to return, since they are not British citizens, but merely residents. Additionally, the US is demanding that they be kept under 24-hour surveillance after they are released. Britain considers this too expensive and unnecessary. One British counterterrorism official says, “They do not pose a sufficient threat.” At least nine British residents remain in Guantanamo. Britain is reportedly only interested in accepting one of them, Bisher al-Rawi, because he used to work as an informant for MI5, a British intelligence agency. [Guardian, 10/3/2006]

In two separate sessions, from October 6-11 and again from December 4-14, officials of the International Committee of the Red Cross (ICRC) interview 14 detainees newly transferred from a variety of CIA secret “black sites” to Guantanamo. The transfers followed President Bush’s acknowledgment that the CIA has maintained a number of these sites and his announced intention to have a number of the detainees sent to the Cuban facility (see September 17, 2001 and September 6, 2006). ICRC Access - The ICRC is legally bound to monitor compliance with the Geneva Conventions and to supervise the treatment of prisoners of war; previously, it had not been allowed to see the detainees, and in some cases were never informed of their detention. The ICRC officials interview each prisoner in private, with the intention of producing “a description of the treatment and material conditions of detention of the 14 during the period they were held in the CIA detention program.” Interviews - The 14 have been held for periods ranging “from 16 months to almost four and a half years.” The ICRC’s report, never intended for public consumption, will be released to the CIA several months later (see February 14, 2007) and revealed in a book in early 2009 (see March 15, 2009). Some of the detainees, concerned about the possible repercussions that may ensue from their discussions, ask the ICRC to withhold their names from some allegations, though most of the report attributes specific narratives and allegations to particular prisoners. Almost every allegation is independently corroborated by other, named detainees. 'Striking Similarity' - In 2009, author Mark Danner will write, quoting the ICRC report: “[I]ndeed, since the detainees were kept ‘in continuous solitary confinement and incommunicado detention’ throughout their time in ‘the black sites,’ and were kept strictly separated as well when they reached Guantanamo, the striking similarity in their stories, even down to small details, would seem to make fabrication extremely unlikely, if not impossible. ‘The ICRC wishes to underscore,’ as the writers tell us in the introduction, ‘that the consistency of the detailed allegations provided separately by each of the 14 adds particular weight to the information provided below.’” Topics of Report - The report covers the following areas: Main elements of the CIA detention program; Arrest and transfer; Continuous solitary confinement and incommunicado detention; Other methods of ill-treatment; Suffocation by water (the ICRC term for waterboarding); Prolonged stress standing; Beatings by use of a collar; Beating and kicking; Confinement in a box; Prolonged nudity; Sleep deprivation and use of loud music; Exposure to cold temperature/cold water; Prolonged use of handcuffs and shackles; Threats; Forced shaving; Deprivation/restricted provision of solid food; Further elements of the detention regime. Conclusion - The report concludes: “The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman, or degrading treatment.” Danner will write, “Such unflinching clarity, from the body legally charged with overseeing compliance with the Geneva Conventions—in which the terms ‘torture’ and ‘cruel, inhuman, and degrading treatment’ are accorded a strictly defined legal meaning—couldn’t be more significant.” [New York Review of Books, 3/15/2009]

In an interview with WDAY’s Scott Heinen, Vice President Dick Cheney says it was a “no-brainer for me” to authorize waterboarding of suspected terrorists (see April 2002 and After and Summer 2003). Cheney says that since waterboarding and other brutal methods are not torture, as he defines the term (see Mid-March 2002), the entire issue is not really an issue. “We don’t torture,” he says. “That’s not what we’re involved in. We live up to our obligations in international treaties that we’re party to, and so forth. But the fact is, you can have a fairly robust interrogation program without torture, and we need to be able to do that.” [Savage, 2007, pp. 154-155; Financial Times, 10/26/2008] After Cheney’s statement causes a welter of criticism among lawmakers and media figures, the White House says Cheney was not talking about waterboarding, and insists that the US does not torture. Cheney calls reporters to bolster the denial. “I did not talk about specific techniques and won’t,” he says. “I didn’t say anything about waterboarding.… He [Heinen] didn’t even use that phrase.” Human Rights Watch says Cheney’s remarks are “the Bush administration’s first clear endorsement” of waterboarding. [Associated Press, 10/28/2006]

Majid Khan. [Source: Public domain via Washington Post]The Bush administration submits documents to US District Judge Reggie B. Walton arguing that Majid Khan, a Guatanamo detainee who was held in the secret CIA prison system for three years, cannot be allowed access to lawyers because he may reveal what interrogation techniques were used on him. CIA Information Review Officer Marilyn A. Dorn says in an affidavit that since “detained by CIA in this program, he may have come into possession of information, including locations of detention, conditions of detention, and alternative interrogation techniques that is classified at the TOP SECRET//SCI [sensitive compartmented information] level.” [Washington Post, 11/4/2006]

MSNBC reports that Mohammed al-Khatani, the alleged would-be twentieth 9/11 hijacker, will likely never be put on trial. A US army investigation concluded that he “was forced to wear a bra. He had a thong placed on his head. He was massaged by a female interrogator who straddled him like a lap dancer. He was told that his mother and sisters were whores. He was told that other detainees knew he was gay. He was forced to dance with a male interrogator. He was strip-searched in front of women. He was led on a leash and forced to perform dog tricks. He was doused with water. He was prevented from praying. He was forced to watch as an interrogator squatted over his Koran.” Mark Fallon, head of the Pentagon’s Criminal Investigation Task Force, claims that he was told by other officials several times not to worry building a legal case against al-Khatani since there would never be a trial against him due to the interrogation techniques used on him. [MSNBC, 10/26/2006] According to al-Khatani’s lawyer, al-Khatani appears to be a broken man, who “painfully described how he could not endure the months of isolation, torture and abuse, during which he was nearly killed, before making false statements to please his interrogators.” [Time, 3/3/2006]

The CIA acknowledges that it has operated under the rubric of two secret Bush administration documents that authorized it to detain and interrogate terrorism suspects overseas. Since 2004, the agency has refused to either confirm or deny the existence of the documents, and has argued in court that to make such an acknowledgement would jeopardize national security. The American Civil Liberties Union, which has fought the CIA in court over the documents, says in a statement by its executive director, Anthony Romero: “The CIA’s sudden reversal on these secret directives is yet more evidence that the Bush administration is misusing claims of national security to avoid public scrutiny. Confusion about whether such a presidential order existed certainly led to the torture and abuse scandal that embarrassed America. With a new Congress and renewed subpoena power, we now need to look up the chain of command.” One of the documents is a secret executive order signed by President Bush authorizing the CIA to set up “black site” detention facilities overseas (see September 17, 2001), and the other is a Justice Department legal analysis specifying interrogation methods that CIA interrogators could use against top al-Qaeda suspects. In legal papers previously filed in court, the CIA claimed that national security would be gravely injured if the CIA were compelled to admit or deny even an “interest” in interrogating detainees. Today, however, the agency acknowledges the existence of the two documents. It continues to withhold the documents themselves; their contents remain unknown to the public. The ACLU’s Jameel Jaffer says: “We intend to press for the release of both of these documents. If President Bush and the Justice Department authorized the CIA to torture its prisoners, the public has a right to know.” [American Civil Liberties Union, 11/14/2006]

The Justice Department argues in federal court that immigrants arrested in the US and labeled as “enemy combatants” under the Military Commissions Act (MCA) (see October 17, 2006) can be indefinitely detained without access to the US justice system. The argument comes as part of the Justice Department’s attempt to dismiss a habeas corpus suit challenging the detention of Ali Saleh Kahlah al-Marri, a Qatari citizen accused by the government of being an al-Qaeda agent (see December 12, 2001 and February 1, 2007). The government argues that the MCA “removes federal court jurisdiction over pending and future habeas corpus actions and any other actions filed by or on behalf of detained aliens determined by the United States to be enemy combatants, such as petitioner-appellant al-Marri.… In plain terms, the MCA removes this Court’s jurisdiction (as well as the district court’s) over al-Marri’s habeas action. Accordingly, the Court should dismiss this appeal for lack of jurisdiction and remand the case to the district court with instructions to dismiss the petition for lack of jurisdiction.” This is the first time the Bush administration has argued in court that the MCA strips a detainee held within the US of habeas rights. Defense Counterargument - Al-Marri’s lawyers say that because he is being held in a South Carolina detention facility, he has the right to challenge his detention in a civilian court like any other non-citizen held on criminal charges. The Justice Department says that enemy combatants have no such rights regardless of where they are being held. Jonathan Hafetz, one of al-Marri’s lawyers, says: “[T]he president has announced that he can sweep any of the millions of non-citizens off the streets of America and imprison them for life in a military jail without charge, court review, or due process. It is unprecedented, unlawful, and un-American.” [Jurist, 11/14/2006] The government has “never admitted that he has any rights, including the right not to be tortured,” Hafetz adds. “They’ve created a black hole where he has no rights.” [Progressive, 3/2007] The Bush administration is also challenging lawsuits filed by detainees at the Guantanamo Bay detention facility on similar grounds. [Jurist, 11/14/2006]

National Defense Intelligence College logo. [Source: National Defense Intelligence College]A study just released by the Intelligence Science Board, a wing of the National Defense Intelligence College, suggests that after the 9/11 attacks, when US military and intelligence agency interrogators were asked to use harsher tactics on suspected terrorists to find out information about upcoming attacks, the interrogators were not sure how to implement such tactics. Therefore, they began “mak[ing] it up on the fly,” the study finds. It continues, “Th[e] shortfall in advanced, research-based interrogation methods at a time of intense pressure from operational commanders to produce actionable intelligence from high-value targets may have contributed significantly to the unfortunate cases of abuse that have recently come to light.” [Congressional Quarterly, 4/4/2008]

Civil libertarians, both conservative and liberal, join in filing a legal brief on behalf of suspected al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri (see December 12, 2001), whose lawyers are preparing to file a suit challenging his detention as an “enemy combatant” (see February 1, 2007). Liberal and progressive law school deans Harold Koh of Yale and Laurence Tribe of Harvard are joined by conservatives such as Steven Calabresi, a former Reagan White House lawyer and co-founder of the staunchly conservative Federalist Society, in a brief that argues an immigrant or a legal resident of the US has the right to seek his freedom in the US court system. Al-Marri is a Qatari citizen who attended Bradley University in Illinois. The brief argues that the Military Commissions Act (MCA) (see October 17, 2006) is unconstitutional. The brief “shows the phrases ‘conservative’ and ‘libertarian’ have less overlap than ever before,” says law professor Richard Epstein, a Federalist Society member who signed it, adding, “This administration has lost all libertarians on all counts.” Koh says: “This involves the executive branch changing the rules to avoid challenges to its own authority. Serious legal scholars, regardless of political bent, find what the government did inconsistent with any reasonable visions of the rule of law.” Epstein, who says Koh is “mad on many issues,” agrees, calling the al-Marri case “beyond the pale.” He says, “They figured out every constitutional protection you’d want and they removed them.” Lawyer Jonathan Hafetz, representing al-Marri, says the case brings up issues about what the framers of the Constitution intended—something libertarians and judicial conservatives often look to. [Associated Press, 12/13/2006]

Jeff Castelli, a former CIA Rome station chief involved in the blown rendition of Islamist extremist Hassan Mustafa Osama Nasr (see Noon February 17, 2003), is disciplined over the affair. Castelli is reprimanded by the CIA’s accountability board and sent to the Air War College at Maxwell Air Force Base in Alabama. One reason for the domestic posting is that Castelli may have difficulty traveling, as he could be arrested if he entered a European country, as well as some other states. [Congressional Quarterly, 2/15/2008]

A 2008 Justice Department report reveals that in January 2007, the CIA prevents Justice Department investigators from questioning al-Qaeda leader Abu Zubaida, who is being held at the Guantanamo prison. The Justice Department will say the CIA’s obstruction was “unwarranted” and “hampered” an investigation by the department’s Office of Inspector General into the FBI’s knowledge of abuse by CIA and Defense Department interrogators. The CIA’s acting general counsel John Rizzo refused to grant access to Zubaida, claiming that he “could make false allegations against CIA employees.” By contrast, Defense Department officials grant the same investigators access to other Guantanamo detainees also allegedly subjected to torture. After Zubaida was captured in early 2002, the CIA subjected him to harsh torture techniques, including waterboarding (see Mid-May 2002 and After). [Newsweek, 5/20/2008]

Pentagon General Counsel William J. Haynes, whose involvement with a set of documents known as the “torture memos” threatens his nomination as an appellate court judge (see November 27, 2002), telephones Morris Davis, the lead prosecutor at Guantanamo, to pressure Davis to charge accused Australian terror suspect David Hicks. Haynes is apparently attempting to do a political favor for Australian Prime Minister John Howard. Haynes is advised that his interference is improper, but calls Davis a second time and suggests that Davis charge other prisoners along with Hicks to avoid any impression that the charges are “a political solution to the Hicks case.” Davis will resign in part because of pressure from Washington to politicize his prosecutions (see October 4, 2007). [Jurist, 11/2/2007]

The American Civil Liberties Union (ACLU) releases FBI documents detailing 26 eyewitness accounts of prisoners abused by US personnel at Guantanamo. The FBI chose not to follow up 17 of the accounts. “These documents contain eyewitness FBI accounts of prisoner abuse which cannot be dismissed by the administration, and only underscore the need for a comprehensive investigation into the treatment of detainees at Guantanamo Bay and other US controlled detention facilities,” says the ACLU’s Amrit Singh. “The documents also call into question the FBI’s apparent decision to not follow up on prisoner abuses by Defense Department personnel. The fact that Defense Department policy allowed this treatment does not mean that it was legal, humane, or ethical.” The documents, compiled by FBI investigators after the Abu Ghraib scandal of 2004, contain eyewitness accounts by guards and interrogators of “aggressive mistreatment, interrogations, or interview techniques of GTMO detainees by representatives of any law enforcement, military, or bureau personnel which were not consistent with bureau guidelines.” Many of the eyewitness accounts focus on insulting the detainees’ religion: Interrogators wrapped one detainee’s head in duct tape “because he would not stop quoting the Koran.” An interrogator bragged about forcing a detainee to listen to “satanic black metal music for hours and hours.” That same interrogator later “dressed as a Catholic priest and baptized the detainee in order to save him.” A Marine captain was observed enraging a detainee by squatting over a Koran in a fashion that the prisoner found extremely offensive. After compiling these accounts, the FBI apparently chose not to pursue them further, citing the fact that what it observed was authorized by Defense Department policies. Only nine of the 26 accounts were slated for follow-up investigations. One incident marked “no further interview necessary” involved draping an Israeli flag around a detainee, shackling detainees to the floor, and subjecting them to excruciatingly loud music and strobe lights. ACLU attorney Jameel Jaffer says: “The FBI appears to have turned a blind eye to the very abuses that most need investigating—those abuses that were expressly authorized by Defense Department policy. The FBI documents only remind us that a thorough and independent investigation is long overdue.” [American Civil Liberties Union, 1/3/2007]

The CIA continues to fight an American Civil Liberties Union (ACLU) lawsuit demanding that it turn over three key memos authorizing the detention and interrogation of suspected terrorists at secret overseas “black sites” (see November 10, 2006). Court documents filed by the agency cite national security concerns for keeping the documents hidden from public scrutiny. ACLU attorney Amrit Singh says: “The CIA’s declaration uses national security as a pretext for withholding evidence that high-level government officials in all likelihood authorized abusive techniques that amount to torture. This declaration is especially disturbing because it suggests that unlawful interrogation techniques cleared by the Justice Department for use by the CIA still remain in effect. The American public has a right to know how the government is treating its prisoners.” One document is a lengthy presidential order described by the CIA as a “14-page memorandum dated 17 September 2001 from President Bush to the director of the CIA pertaining to the CIA’s authorization to detain terrorists” (see September 17, 2001). Twelve of the 14 pages are “a notification memorandum” from the president to the National Security Council regarding a “clandestine intelligence activity.” ACLU officials say this statement “raises questions regarding the extent to which Condoleezza Rice was involved in establishing the CIA detention program as national security adviser.” The CIA declares in the brief that the presidential document is so “Top Secret” that NSC officials created a “special access program” governing access to it. The brief states that “the name of the special access program is itself classified SECRET,” meaning that the CIA believes that the disclosure of the program’s name “could be expected to result in serious danger to the nation’s security.” The other two documents are, respectively, an August 1, 2002 Justice Department memo “advising the CIA regarding interrogation methods it may use against al-Qaeda members” (see August 1, 2002), and an apparent “draft” version of the August 1 memo prepared for White House counsel Alberto Gonzales by Assistant Attorney General Jay Bybee, the then-head of the Justice Department’s Office of Legal Counsel. The draft memo apparently contends that physical abuse only equates to torture under US law if it inflicts pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The memo was later rescinded (see December 2003-June 2004). The ACLU’s Jameel Jaffer says: “Through these memos, the president and Office of Legal Counsel created a legal framework that was specifically intended to allow the CIA to violate both US and international law. While national security sometimes requires secrecy, it is increasingly clear that these documents are being kept secret not for national security reasons but for political ones.” [American Civil Liberties Union, 1/10/2007]

Two unnamed US Special Forces soldiers accused of complicity in the March 2003 deaths of Afghan soldier Jamal Naseer and Afghan peasant Wakil Mohammed are given administrative reprimands by the US Army. Naseer was reportedly tortured to death by Special Forces soldiers (see March 16, 2003) and the unarmed Mohammed was shot after a firefight near the Special Forces base of Gardez (see March 1, 2003).
But a statement released by the Special Forces Command indicates that the reprimands only fault the soldiers for assault relating to the “slapping of detainees.” It states that the soldier who shot Wakil Muhammed was acting in self-defense. As for Naseer, “all other allegations, to include voluntary manslaughter and aggravated assault of detainee Jamal Naseer, were found to be unsubstantiated.” A reprimand is not a formal punishment, rather it has the effect of reducing the recipient’s prospects for a promotion and can end a military career. A military investigation began in 2004 after media reports about their deaths (see September 21, 2004). [Crimes of War Project, 1/31/2007]

Italian authorities investigating the kidnapping of radical imam Hassan Mustafa Osama Nasr (a.k.a. Abu Omar) seize half of a villa belonging to Robert Seldon Lady, a CIA substation chief involved in the abduction (see Noon February 17, 2003 and February 22-March 15, 2003). The half of the villa that belongs to Lady (the other half belongs to his wife) is to be held until the end of Lady’s trial for the kidnapping (see February 16, 2007). If Lady is convicted, it will be sold to pay for court costs and possibly damages. [Associated Press, 1/26/2007]

Attorneys for accused al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri (see December 12, 2001) challenge his detention as an enemy combatant (see June 23, 2003). The attorneys, appearing before a three-judge panel in Richmond’s Fourth US Court of Appeals, say that al-Marri is being held unconstitutionally and should be allowed to challenge his imprisonment in court under his right to habeas corpus. Al-Marri, a Qatari national, is the only person being held as an enemy combatant on US soil. His lawyers argue that he has inalienable rights as a legal resident of the US, including the right to due process and to challenge his accusers in court. One of al-Marri’s lawyers, Jonathan Hafetz, tells the court: “The basic question is whether criminal or military law governs this case. [The president] cannot militarize the case of a man in Peoria with the stroke of a pen.” The government says that the Military Commissions Act (MCA) (see October 17, 2006) gives the government the right to hold al-Marri and any other designated enemy combatant indefinitely, without recourse to the courts. Hafetz contends that the MCA doesn’t repeal defendants’ right to challenge their detention. He also says al-Marri was improperly classified as an enemy combatant. Justice Department lawyers argue that the court has no jurisdiction to hear such cases, and that the government has classified evidence proving that al-Marri is indeed an al-Qaeda agent. Judge Diana Gribbon Motz asks Justice Department lawyer David Salmons what would stop Bush from declaring anyone he chose an enemy combatant, even if that person was a citizen of a nation not at war with the US. “What I don’t understand is how you make one an enemy combatant,” she says. “What did the president look to, to call someone an enemy combatant?” Salmons says that Congress and the Supreme Court have granted Bush the authority to fight terrorism, (see September 14-18, 2001) and that authorization grants Bush the right to designate people with suspected al-Qaeda links as enemy combatants. Motz disagrees: “If the US can do this, it’s contrary to the Constitution. It would give other nations the ability to do that by declaring a US citizen an enemy combatant.” Salmons says the 9/11 attacks make the situation different. Al-Marri is supported in the court by, among others, former Attorney General Janet Reno, seven former Justice Department officials, and 29 US law school professors, who all contend that the government’s treatment of al-Marri is unconstitutional and sets a dangerous precedent in depriving US residents of basic legal rights. The case is al-Marri v. Wright, 06-7427.[Associated Press, 2/1/2007]

Hassan Mustafa Osama Nasr (a.k.a. Abu Omar) is released in Egypt. He was kidnapped by the CIA in Milan, Italy, in 2003 and taken to Egypt, where he was imprisoned. This sparked a confrontation between the CIA and Italian anti-terrorist authorities, who had been investigating him before he was kidnapped (see Noon February 17, 2003). Nasr, who filed an action for unlawful detention against Egypt’s Interior Ministry, is released in Alexandria after a State Security Court declares his detention “unfounded.” Nasr will apparently remain in Egypt and not return to Italy, where a warrant for his arrest was issued on terrorism counts (see April 2005). [Associated Press, 2/12/2007]

Mohammed Haydar Zammar in 2001. [Source: Knut Muller / Der Spiegel]Mohammed Haydar Zammar, an alleged member of al-Qaeda’s Hamburg, Germany, cell with a few of the 9/11 hijackers, is given a 12-year prison sentence in Syria. It had been known that Zammar was arrested in late 2001 in Morocco and renditioned to Syria for likely torture and interrogation (see October 27-November 2001 and December 2001), but his exact location was not confirmed until a European Union official spotted him in Syrian custody in October 2006 (see October 2006). It has been reported that Zammar had extensive al-Qaeda connections and a probable role in the 9/11 plot, but he was not charged for any of that, and instead was accused of being a member of the Muslim Brotherhood. This group is banned in Syria, and membership in it is a crime that is punishable by death. The court initially sentences Zammar to life imprisonment but commutes his sentence to 12 years. Der Spiegel comments, “Zammar’s German citizenship and the fact that German diplomats were closely monitoring the trial may have gone some way toward saving him from the gallows.” [Der Spiegel (Hamburg), 2/12/2007]

The International Committee of the Red Cross sends its report on the detention and torture of 14 detainees formerly in CIA custody (see October 6 - December 14, 2006) to the CIA’s acting general counsel, John Rizzo. The report is never intended to be made public, but it is documented in an article and subsequent book by Mark Danner (see March 15, 2009). [New York Review of Books, 3/15/2009]

An Italian judge rules that there is enough evidence to try thirty-five people in the affair of kidnapped imam Hassan Mustafa Osama Nasr (a.k.a. Abu Omar). Nasr was kidnapped by the CIA, with the knowledge of the Italian military intelligence service Servizio per le Informazioni e la Sicurezza Militare (SISMI), in Milan in 2003 (see Noon February 17, 2003). Nasr, a former CIA asset (see August 27, 1995 and Shortly After), was then taken to Egypt, where he says he was tortured (see April-May 2004). The 26 Americans that are indicted can be tried in absentia in Italy and include Robert Seldon Lady, former chief of the CIA’s substation in Milan, the former CIA station chief in Rome, and an officer from the US air base in Aviano, near Venice. The nine Italians include former SISMI head Nicolo Pollari, but three of them are only charged with complicity in the kidnapping, not the kidnapping itself. However, none of the Americans are in Italy at this time, and Italy has not asked for them to be extradited. [Associated Press, 1/26/2007; CNN, 2/16/2007]

Robert Seldon Lady, a CIA officer involved in the rendition from Italy to Egypt of Islamist extremist Hassan Mustafa Osama Nasr (a.k.a. Abu Omar—see Noon February 17, 2003), grants an interview to GQ magazine. In addition to discussing the rendition and the surveillance of Nasr that preceded it, Lady comments on his life afterwards, saying he feels he is constantly watched and that his wife has left him because of the stress following his outing as a covert operative. Furthermore, his home in Italy will probably be confiscated if he is convicted in legal proceedings against the kidnappers in Italy, although he is still making mortgage payments of $4,000 a month on it. “I’ll probably be convicted, but I won’t go to the trial, and I’ll never see Italy again,” he says. The CIA apparently told him to “keep quiet and let this blow over,” and he has to report to headquarters every month for update meetings. “No one’s called me for support. No one has helped. I keep thinking, ‘F_ck it, I’ve got nothing to lose,’” he adds. “Leaders used to protect those below from the top as they went up. It’s a way of harnessing the loyalty of those they led. Now they protect the top. They manage down and step on anyone below. What happened to me—and it happened to many good people—is that I worked too hard. I was decent. Even bureaucracies must die.” [GQ, 3/2007 ]

Nieman Reports, a quarterly magazine about journalism, publishes an article by investigative journalist Craig Pyes describing how the US Army attempted to undermine a Los Angeles Times investigation looking into the March 2003 deaths of two Afghan detainees (see March 16, 2003). It is believed that members of a Special Forces detachment in Afghanistan murdered the two men, identified as Jamal Naseer and Wakil Mohammed, and then covered up the circumstances surrounding their deaths. An official investigation into the two deaths by the Army’s Criminal Investigation Command (CID) found insufficient probable cause to bring charges for either of the two deaths. As a result of the CID investigation, two soldiers were given noncriminal administrative letters of reprimand (see January 26, 2007) for “slapping” prisoners at the Gardez facility and for failing to report the death of Naseer. In his article, Pyes recounts the resistance he and his colleague Kevin Sack encountered from the military as they sought information about the two deaths. The military refused to disclose basic information about the circumstances surrounding the two deaths, including the two men’s identities, the circumstances of their detention, the charges against them, court papers, and investigative findings. The journalists also learned that soldiers had been told by their superiors that it was important that everyone be “on the same page in case there was an investigation.” During their investigation, they also discovered that “military examiners had made some significant errors, including their initial failure to identify the victims. They also grossly misidentified dates of crucial events and persistently failed to interview key people and locate supporting documents.” [Nieman Watchdog, 3/2/2007]

Judge Marcia Cooke. [Source: Daily Business Review]Federal prosecutors in the Jose Padilla case (see May 8, 2002) say that a video of Padilla’s final interrogation, on March 2, 2004, is inexplicably missing. The video was not part of a packet of DVDs containing classified material turned over to the court handling the Padilla case. Padilla’s lawyers believe that the missing videotape may show Padilla being subjected to “harsh” interrogation techniques that may qualify as torture, and wonder if other potentially exculpatory recordings and documentation of Padilla’s interrogations have also been lost. Padilla’s lawyers say something happened during that last interrogation session on March 2, 2004, at the Navy brig in Charleston, South Carolina, that led Padilla to believe that the lawyers are actually government agents. Padilla no longer trusts them, the lawyers say, and they want to know what happened. Prosecutors say that they cannot find the tape despite an intensive search. “I don’t know what happened to it,” Pentagon attorney James Schmidli said during a recent court hearing. US District Court Judge Marcia Cooke finds the government’s claim hard to believe. “Do you understand how it might be difficult for me to understand that a tape related to this particular individual just got mislaid?” Cooke told prosecutors at a hearing last month. Padilla, a US citizen, is scheduled to stand trial in April. Padilla’s lawyers want the brig tapes, medical records, and other documentation to prove their claims that Padilla suffers intense post-traumatic stress syndrome from his long isolation and repeated interrogations, though Cooke has ruled that Padilla is competent to stand trial. They believe that he was mistreated and possibly tortured in the Naval brig before being transferred to civilian custody. This missing DVD may not be the only one because brig logs indicate that there were approximately 72 hours of interrogations that either were not recorded, or whose recordings were never disclosed. Prosecutors claim some interrogations were not recorded, but defense lawyers question that, pointing out that there are even videos of Padilla taking showers. [Newsweek, 2/28/2007; Associated Press, 3/9/2007] Statements by then-Deputy Attorney General James Comey in June 2004 indirectly support the defense’s claim that Padilla was subjected to harsh interrogation tactics (see June 2004). Other videotapes that may pertain to the Padilla case have been destroyed by the CIA (see November 22, 2005). Former civil rights litigator Glenn Greenwald writes, “[I]f the administration’s patently unbelievable claim were true—namely, that it did ‘lose’ the video of its interrogation of this Extremely Dangerous International Terrorist—that would, by itself, evidence a reckless ineptitude with American national security so grave that it ought to be a scandal by itself. But the likelihood that the key interrogation video with regard to Padilla’s torture claims was simply ‘lost’ is virtually non-existent. Destruction of relevant evidence in any litigation is grounds for dismissal of the case (or defense) of the party engaged in that behavior. But where, as here, the issues extend far beyond the singular proceeding itself—we are talking about claims by a US citizen that he was tortured by his own government—destruction of evidence of this sort would be obstruction of justice of the most serious magnitude.” [Salon, 3/10/2007]

A photo of Khalid Shaikh Mohammed allegedly taken during his capture in 2003 (there are controversies about the capture). [Source: FBI]Khalid Shaikh Mohammed (KSM) attends his combat status review tribunal at Guantanamo Bay (see March 9-April 28, 2007), where he admits participating in the 9/11 attacks and numerous other plots, and offers a defense of his actions. He claims responsibility or co-responsibility for a list of 31 plots, including: The 1993 World Trade Center bombing (see February 26, 1993); The 9/11 operation: “I was responsible for the 9/11 operation from A to Z”; The murder of Daniel Pearl (see January 31, 2002): “I decapitated with my blessed right hand the head of the American Jew, Daniel Pearl”; The late 2001 shoe bombing operation (see December 22, 2001); The 2002 Bali nightclub bombings (see October 12, 2002); A series of ship-bombing operations (see Mid-1996-September 11, 2001 and June 2001); Failed plots to assassinate several former US presidents; Planned attacks on bridges in New York; Various other failed attacks in the US, UK, Israel, Indonesia, Australia, Japan, Azerbaijan, the Philippines, India, South Korea, and Turkey; The planned destruction of an El-Al flight in Bangkok; The Bojinka plot (see January 6, 1995), and assassination plans for President Clinton (see September 18-November 14, 1994) and the Pope (see September 1998-January 1999); and Planned attacks on the Library Tower in California, the Sears Tower in Chicago, the Empire State Building in New York, and the “Plaza Bank” in Washington State (see October 2001-February 2002). [US Department of Defense, 3/10/2007 ] However, the Plaza Bank was not founded until 2006, three years after KSM was captured. The bank’s president comments: “We’re confused as to how we got on that list. We’ve had a little bit of fun with it over here.” [Seattle Post-Intelligencer, 3/15/2007]On the other hand, KSM denies receiving funds from Kuwait or ever heading al-Qaeda’s military committee; he says this was a reporting error by Yosri Fouda, who interviewed him in 2002 (see April, June, or August 2002). In addition, he claims he was tortured, his children were abused in detention, and that he lied to his interrogators (see June 16, 2004). He also complains that the tribunal system is unfair and that many people who are not “enemy combatants” are being held in Guantanamo Bay. For example, a team sent by a Sunni government to assassinate bin Laden was captured by the Taliban, then by the US, and is being held in Guantanamo Bay. He says that his membership of al-Qaeda is related to the Bojinka operation, but that even after he became involved with al-Qaeda he continued to work with another organization, which he calls the “Mujaheddin,” was based in Pakistan, and for which he says he killed Daniel Pearl. [US Department of Defense, 3/10/2007 ] (Note: KSM’s cousin Ramzi Yousef was involved with the militant Pakistani organization Sipah-e-Sahaba.) [Reeve, 1999, pp. 50, 54, 67] Mohammed says he was waterboarded by his interrogators. He is asked: “Were any statements you made as the result of any of the treatment that you received during that time frame from 2003 to 2006? Did you make those statements because of the treatment you receive from these people?” He responds, “CIA peoples. Yes. At the beginning, when they transferred me.” [ABC News, 4/11/2008] He goes on to compare radical Islamists fighting to free the Middle East from US influence to George Washington, hero of the American War of Independence, and says the US is oppressing Muslims in the same way the British are alleged by some to have oppressed Americans. Regarding the fatalities on 9/11, he says: “I’m not happy that three thousand been killed in America. I feel sorry even. I don’t like to kill children and the kids.” Although Islam prohibits killing, KSM argues that there is an exception because “you are killing people in Iraq.… Same language you use, I use.… The language of war is victims.” [US Department of Defense, 3/10/2007 ] The hearing is watched from an adjoining room on closed circuit television by Senator Carl Levin (D-MI) and former Senator Bob Graham (D-FL). [US Congress, 3/10/2007] KSM’s confession arouses a great deal of interest in the media, which is skeptical of it (see March 15-23, 2007 and Shortly After).

Majid Khan. [Source: Associated Press]At hearings in Guantanamo Bay in spring 2007 to determine whether they are “enemy combatants” (see March 9-April 28, 2007), several alleged top al-Qaeda leaders complain of being tortured in US custody: Alleged al-Qaeda logistics manager Abu Zubaida says he is ill in Guantanamo Bay and has had around 40 seizures that temporarily affect his ability to speak and write properly, as well as his memory; apparently they are originally the result of a 1992 injury from which he still has shrapnel in his head. He says that the seizures are brought on by broken promises to return his diary, which he describes as “another form of torture,” as he is emotionally attached to it. He also says he was tortured after being captured (see Mid-May 2002 and After), when he was “half die”, due to a gunshot wound received when he was taken, and that he lied under torture. However, the passage in which he describes his treatment at this time is redacted. He has many other injuries, has lost a testicle, and also complains the Guantanamo authorities refuse to give him socks for his cold feet. He has to use his prayer hat to keep his feet warm and does so during the hearing. [US Department of Defense, 3/27/2007 ] 9/11 mastermind Khalid Shaikh Mohammed remarks that, “I know American people are torturing us from seventies.” However, the next section of the transcript is redacted. He also says his children were abused in US custody. [US Department of Defense, 3/10/2007 ] Alleged travel facilitator Majid Khan submits a 12-page “written statement of torture.” Khan’s father also gives an account of the torture he says his son was subjected to: he was tied tightly to a chair in stress positions; hooded, which caused him difficulty breathing; beaten repeatedly; deprived of sleep; and kept in a mosquito-infested cell too small for him to lie down in. His father also says Khalid Shaikh Mohammed’s children, aged about 6 and 8, were held in the same building and were tortured by having insects placed on their legs to make them disclose their father’s location. [US department of Defense, 4/15/2007 ] Alleged al-Qaeda manager Abd al-Rahim al-Nashiri says he was tortured into confessing the details of plots he invented. He claims that “he was tortured into confession and once he made a confession his captors were happy and they stopped torturing him… [and] he made up stories during the torture in order to get it to stop.” Many of the details of the torture are redacted, but he says in one unredacted comment, “One time they tortured me one way and another time they tortured me in a different way.” [US department of Defense, 3/14/2007 ]Eugene Fidell, president of the National Institute of Military Justice, says that the claims of torture could undermine the legitimacy of future military commissions: “Someone has got to get to the bottom of these allegations… If there is something there, they are going to need to address it.” The Pentagon promises to investigate the allegations, but Amnesty International comments, “Given the Bush administration record so far on these matters, it strains credulity that any such investigation would be anything other than substandard, or [that] those responsible would be held accountable.” [Los Angeles Times, 3/31/2007]

Silvestre Reyes. [Source: US House of Representatives]In response to a question asked at a briefing, CIA Director Michael Hayden makes an “offhand comment” to the House Intelligence Committee indicating that tapes the CIA has made of detainee interrogations have been destroyed (see Spring-Late 2002). Although some committee members have been aware of the tapes’ existence since 2003 (see February 2003), this is apparently the first time they learn of their destruction, which occurred over year ago (see November 2005). The destruction is again “briefly mentioned” in a letter to a member of the committee in mid-April. Leading committee members Silvestre Reyes and Peter Hoekstra will later write to Hayden, “We do not consider this to be sufficient notification. Moreover, these brief mentions were certainly not contemporaneous with the decision to destroy the videotapes.” [US Congress, 12/7/2007] The Senate Intelligence Committee is apparently not informed until later (see December 7, 2007).

A cartoonist’s view of Khalid Shaikh Mohammed’s confession. [Source: Rob Rodgers / Pittsburgh Post-Gazette]Khalid Shaikh Mohammed’s (KSM) confession at a Guantanamo Bay hearing (see March 10, 2007), becomes, as Time puts it, “a focus of cable TV and other media coverage, a reminder of America’s ongoing battle against international terrorism.” [Time, 3/15/2007] However, terrorism analysts are skeptical of some aspects of it. In an article entitled Why KSM’s Confession Rings False, former CIA agent Robert Baer says that KSM is “boasting” and “It’s also clear he is making things up.” Specifically, Baer doubts that KSM murdered Wall Street Journal reporter Daniel Pearl (see January 31, 2002). Baer notes that this “raises the question of just what else he has exaggerated, or outright fabricated.” Baer also points out he does not address the question of state support for al-Qaeda and that “al-Qaeda also received aid from supporters in Pakistan, quite possibly from sympathizers in the Pakistani intelligence service.” [Time, 3/15/2007] Pearl’s father also takes the confession of his son’s murder “with a spice of doubt.” [Hindustan Times, 3/23/2007] Journalist Yosri Fouda, who interviewed KSM in 2002 (see April, June, or August 2002), comments, “he seems to be taking responsibility for some outrages he might not have perpetrated, while keeping quiet about ones that suggest his hand.” Specifically, he thinks KSM may have been involved in an attack in Tunisia that killed about 20 people (see April 11, 2002). [London Times, 3/18/2007] KSM is also believed to have been involved in the embassy and USS Cole bombings (see Mid-1996-September 11, 2001), but these are also not mentioned. Terrorism analyst Bruce Riedel also does not take the confession at face value, saying, “He wants to promote his own importance. It’s been a problem since he was captured.” [Time, 3/15/2007] The Los Angeles Times notes that, according to intelligence officials, “the confession should be taken with a heavy dose of skepticism.” A former FBI manager says: “Clearly he is responsible for some of the attacks. But I believe he is taking credit for things he did not have direct involvement in.” [Los Angeles Times, 3/16/2007] The Seattle Post-Intelligencer points out that the Plaza Bank, one of the targets KSM says he planned to attack, was actually established in 2006, three years after he was captured. [Seattle Post-Intelligencer, 3/15/2007] Michael Scheuer, formerly head of the CIA’s bin Laden unit, notes KSM only says he is “involved” in the plots and that 31 plots in 11 years “can hardly be called excessive.” [Hindustan Times, 3/23/2007] Some media are even more skeptical. For example, the Philadelphia Inquirer comments that KSM, “claimed credit for everything but being John Wilkes Booth’s handler.” [Philadelphia Inquirer, 3/30/2007]

At a Guantanamo Bay tribunal to decide his combat status (see March 9-April 28, 2007), militant Islamist logistics manager Abu Zubaida (see March 28, 2002) is accused of heading Khaldan and Darunta training camps in Afghanistan and of co-ordinating their operation with Osama bin Laden, as well as moving money for al-Qaeda, desiring fraudulently-obtained Canadian passports for a terrorist plot, and making diary entries about planned attacks in the US. [US Department of Defense, 3/27/2007 ]Complaints of Torture, Admission of False Confessions - Zubaida complains of being tortured in US custody (see Mid-May 2002 and After and March 10-April 15, 2007). Zubaida’s statements about his treatment in US custody will be redacted from the trial transcripts, but a few remarks remain. In broken English, Zubaida states: “I was nearly before half die plus [because] what they do [to] torture me. There I was not afraid from die because I do believe I will be shahid [martyr], but as God make me as a human and I weak, so they say yes, I say okay, I do I do, but leave me. They say no, we don’t want to. You to admit you do this, we want you to give us more information… they want what’s after more information about more operations, so I can’t. They keep torturing me.” The tribunal president, a colonel whose name is also redacted, asks, “So I understand that during this treatment, you said things to make them stop and then those statements were actually untrue, is that correct?” Zubaida replies, “Yes.” [US Department of Defense, 3/27/2007 ; Vanity Fair, 12/16/2008]Denies Being Al-Qaeda Member or Enemy of US - He goes on to deny that he is an “enemy combatant,” saying that the Khaldan training camp, which he admits being logistics manager of, was around since the Soviet-Afghan War and was also used to train Muslims who wanted to fight invaders in Muslim lands, such as Chechnya, Kashmir, the Philippines, and Bosnia, where “America helped us.” After he was captured the US administration exaggerated his importance, and some media accounts have suggested his role was greatly exaggerated (see Shortly After March 28, 2002). He denies being an official member of al-Qaeda and says he disagrees with attacks on civilians. However, he admits some of his trainees subsequently decided to join al-Qaeda and that he did not prevent them from doing this. He also denies moving the money and submits a volume of his diary that apparently shows he was in Pakistan when the charges state he went to Saudi Arabia to collect the money. He requests the production of other volumes of his diaries, on which some of the charges are based, but they are not made available to the tribunal. In addition, he denies corresponding with bin Laden before 2000 and details a dispute that arose between them after that time. He says his diary entries about military targets are “strictly hypothetical,” and the passports are for non-terrorist travel. Following the US invasion of Afghanistan, he admits he helped non-aligned fighters escape from South Asia. He states that he is an enemy of the US because of its alliance with Israel, which he claims is oppressing his fellow Palestinians, saying, “A partner of a killer is also a killer.” [US Department of Defense, 3/27/2007 ]

Bisher al-Rawi holding a child after release. [Source: Craig Hibbert]British resident Bisher al-Rawi is released from the Guantanamo prison after being held there for almost five years (see March 2003-November 18, 2007). He and a man named Jamil al-Banna had been arrested by the CIA in 2002 after being given information by the British intelligence agency MI5 that MI5 knew to be false (see November 8, 2002-December 7, 2002). He had worked as an informant for MI5 and they apparently wanted to pressure him to resume informing for them, but he refused. He and al-Banna were interrogated and abused in Gambia, Bagram in Afghanistan, and Guantanamo. He says, “My nightmare is finally at an end.” Al-Rawi’s lawyer says of al-Rawi’s US jailers: “Right to the end they treated him with brutality. On the way to the plane in Guantanamo—they knew he was leaving—they insisted still on shackling him, blindfolding him, putting on earmuffs so he couldn’t hear a thing and keeping him in the back of a very hot, very confined van on the way to the plane.” [BBC, 4/1/2007] Britain showed no interest in helping al-Rawi until he publicly revealed in 2006 that he had been an MI5 informant (see April 20, 2006). Then it took over a year of secret negotiations before the US and Britain came to terms for releasing him (see October 3, 2006).

Former CIA manager Michael Scheuer, who ran the agency’s “rendition” program that sent suspected terrorists to foreign nations to be interrogated for information in the late 1990s (see Summer 1995 and 1997), says during a House Foreign Affairs Committee hearing that the assurances of Arab nations such as Egypt and Syria that a suspect will not be tortured are not “worth a bucket of warm spit.” Scheuer tells the assembled lawmakers that he knows of at least three mistakes that the CIA has made in its overseas rendition program, including the capture and subsequent torture of Canadian citizen Maher Arar (see September 26, 2002 and October 10, 2002-October 20, 2002). [Savage, 2007, pp. 149-150; US Congress, 4/17/2007 ]

Interviewed by Scott Pelley on CBS’s “60 Minutes” shortly after the release of his new book At the Center of the Storm, former CIA Director George Tenet vigorously denies that the US has tortured detainees. During the following exchange, Tenet gets upset and points his finger at Pelley: Tenet - The image that’s been portrayed is, we sat around the campfire and said, ‘Oh, boy, now we go get to torture people.’ Well, we don’t torture people. Let me say that again to you. We don’t torture people. Okay?” Pelley - “Come on, George.” Tenet - “We don’t torture people.” Pelley - “Khalid Shaikh Mohammed?” Tenet - “We don’t torture people.” Pelley - “Water boarding?” Tenet - “We do not—I don’t talk about techniques.” Pelley - “It’s torture.” Tenet - “And we don’t torture people. Now, listen to me. Now, listen to me. I want you to listen to me. The context is it’s post-9/11. I’ve got reports of nuclear weapons in New York City, apartment buildings that are gonna be blown up, planes that are gonna fly into airports all over again.… Everybody forgets one central context of what we lived through. The palpable fear that we felt on the basis of the fact that there was so much we did not know. I know that this program has saved lives. I know we’ve disrupted plots.” Pelley - “But what you’re essentially saying is some people need to be tortured.” Tenet - “No, I did not say that. I did not say that.” Pelley - “You’re telling me that… the enhanced interrogation…” Tenet - “I did not say that. I did not say that. We do not tor… Listen to me. You’re, you’re making an assumption.” Pelley - “You call it in the book, ‘enhanced interrogation.’” Tenet - “Well, that’s what we call it.” Pelley - “And that’s a euphemism.” Tenet - “I’m not having a semantic debate with you. I’m telling you what I believe.” Tenet also denies that anyone ever dies in the CIA’s interrogation program. He says he never personally witnessed any interrogations, but adds, “I understand what I was signing off on.” Asked if he’s lost sleep over the “enhanced interrogation techniques,” Tenet replies, “Yeah, of course you do! Of course you lose sleep over it. You’re on new territory.” He says such techniques are necessary because “these are people that will never, ever, ever tell you a thing. These are people who know who’s responsible for the next terrorist attack. These are hardened people that would kill you and me 30 seconds after they got out of wherever they were being held and wouldn’t blink an eyelash.” [CBS News, 4/29/2007]

Russell Feingold. [Source: Flickr.com]Four senators—Russell Feingold (D-WI), Dianne Feinstein (D-CA), Chuck Hagel (R-NE), and Ron Wyden (D-OR)—send letters objecting to the CIA’s use of waterboarding and other extreme methods of interrogation against terrorism suspects after receiving a briefing from CIA Director Michael Hayden on the subject. Though lawmakers are bound by secrecy oaths from revealing the nature of the classified briefings on secret interrogation subjects, in November 2007, Feingold will breach that oath, complaining that the Bush administration is mischaracterizing the level of Congressional support for what administration officials call “enhanced interrogation tactics” (see November 7, 2007). [Washington Post, 12/9/2007]

The trial of suspected al-Qaeda operative Jose Padilla begins in a Miami criminal court. Padilla is charged with conspiring to “murder, kidnap, and maim” people overseas. The charges include no allegations of a “dirty bomb” plot or other plans for US attacks, as have been alleged by Bush administration officials (see June 10, 2002). Two co-defendants, Adham Amin Hassoun (see 1993) and Kifah Wael Jayyousi (see (October 1993-November 2001)), also face charges of supporting terrorist organizations. “The defendants were members of a secret organization, a terrorism support cell, based right here in South Florida,” says prosecutor Brian Frazier in his opening statement. “The defendants took concrete steps to support and promote this violence.” Defense attorneys argue that Padilla, Hassoun, and Jayyousi are peaceful Muslims interested in studying their religion and helping their fellow Muslims in war-ravaged areas of the world. Padilla’s attorney, Anthony Natale, calls the case against his client the product of “the politics of fear” in the aftermath of the 9/11 attacks. “Political crises can cause parts of our government to overreach. This is one of those times,” he says. “He’s a young man who has been wrongly accused.” Hassoun’s attorney, Jeanne Baker, says: “The government really is trying to put al-Qaeda on trial in this case, and it doesn’t belong in this courtroom. There’s a lot of rhetoric, but there’s no evidence.” Much of the evidence against the three consists of FBI wiretaps, documents, and witness statements. One of the strongest pieces of evidence against Padilla is his application to attend an al-Qaeda training camp in Afghanistan in July 2000 (see September-October 2000). Prosecutors say Hassoun recruited Padilla when they met in a Florida mosque. “Jose Padilla was an al-Qaeda terrorist trainee providing the ultimate form of material support—himself,” says Frazier. “Padilla was serious, he was focused, he was secretive. Padilla had cut himself off from most things in his life that did not concern his radical view of the Islamic religion.” [Associated Press, 5/14/2007]

A judge says that the designation “enemy combatant,” used to label detainees held by the US in Guantanamo Bay, is meaningless, throwing proceedings for hundreds of the men into what the Guardian describes as “chaos.” Tribunals had been held in Guantanamo Bay to determine whether detainees held there were “enemy combatants,” and it was thought that such designation was a necessary preliminary step to putting them on trial. However, the judge, Colonel Peter Brownback, says that it is not enough to designate a detainee as an “enemy combatant,” and that a tribunal must be proceeded by a designation that a detainee is an “unlawful enemy combatant,” as this is the wording used in the Military Commissions Act, which established the tribunals. Colonel Brownback throws out cases against detainees Omar Khadr and Salim Ahmed Hamdan, alleged to have been Osama bin Laden’s chauffeur, saying that a person “has a right to be tried only by a court that has jurisdiction over him,” and the court does not have that right. The ruling means that none of the other hundreds of detainees can be brought before the tribunals, because the incorrect designation was applied to all of them. However, the ruling is without prejudice, and the US can still try to re-designate detainees “unlawful enemy combatants” and bring them before tribunals. Defense attorney Kristine Huskey calls the situation a “shambles,” and says, “It’s another example of how everything has been so ad hoc. The Military Commissions Act was just not done thoughtfully.” Another defense attorney, Colonel Dwight Sullivan, comments, “The system right now should just stop… The commission is an experiment that failed and we don’t need any more evidence that it is a failure.” [Guardian, 6/5/2007]

Ali Abd al-Rahman al-Faqasi al-Ghamdi. [Source: Public domain]Amnesty International, Human Rights Watch, and four other organizations file a US federal lawsuit under the Freedom of Information Act seeking information about 39 people they believe have “disappeared” while held in US custody. The groups mentions 39 people who were reportedly captured overseas and then held in secret CIA prisons. The US acknowledges detaining three of the 39 but the groups say there is strong evidence, including witness testimony, of secret detention in 18 more cases and some evidence of secret detention in the remaining 18 cases. In September 2006, President Bush acknowledged the CIA had interrogated dozens of suspects at secret CIA prisons and said 14 of those were later sent to Guantanamo Bay (see September 6, 2006). At that time it was announced that there were no prisoners remaining in custody in US secret facilities (see September 2-3, 2006). However, the groups claim that in April 2007 a prisoner named Abd al-Hadi al-Iraqi was transferred from CIA custody to Guantanamo, demonstrating the system is still operating (see Autumn 2006-Late April 2007). The groups also claim that in September 2002 the US held the two children of Khalid Shaikh Mohammed (KSM), then aged seven and nine, in an adult detention center. KSM was later captured and is now held at Guantanamo; it is unknown what happened to his children. [Reuters, 6/7/2007] Some of the more important suspects named include: Hassan Ghul, said to be an important al-Qaeda courier. In 2005, ABC News reported he was being held in a secret CIA prison (see November 2005). Apparently, the CIA transferred Ghul to Pakistani custody in 2006 so he would not have to join other prisoners sent to the Guantantamo prison (see (Mid-2006)), and Pakistan released him in 2007, allowing him to rejoin al-Qaeda (see (Mid-2007)). Ibn al-Shaykh al-Libi, a high-ranking al-Qaeda leader. The same ABC News report also mentioned him. Al-Libi was secretly transferred to Libya around 2006 (see Between November 2005 and September 2006) and will die there in 2009 under mysterious circumstances (see (May 10, 2009)). Mohammed Omar Abdul-Rahman, a son of the Blind Sheikh, Sheikh Omar Abdul-Rahman. The same ABC News report also mentioned him. He was reportedly captured in Pakistan in 2003 (see February 13, 2003). Ali Abd al-Rahman al-Faqasi al-Ghamdi, a.k.a. Abu Bakr al Azdi. He is said to be a candidate 9/11 hijacker who was held back for another operation. In 2004, the 9/11 Commission reported he was in US custody. Suleiman Abdalla Salim Hemed. Wanted for involvement in the 1998 African embassy bombings, he was reportedly captured in Somalia in March 2003. Witnesses claim to have seen him in two secret US prisons in 2004. Yassir al-Jazeeri. Said to be a high-ranking al-Qaeda leader, he was reportedly captured in Pakistan in March 2003. Witnesses later saw him in a secret CIA prison (see March 15, 2003). Musaad Aruchi, a nephew of Khalid Shaikh Mohammed. He was reported captured in Pakistan in June 2004 and then taken into CIA custody (see June 12, 2004). Sheikh Ahmed Salim Swedan. Wanted for a role in the African embassy bombings, there were various reports he was captured in Pakistan in 2002 and taken into US custody (see July 11, 2002). However, it appears these reports are false, because he will allegedly be killed in Pakistan in 2009 (see January 1, 2009). Anas al-Liby, also wanted for a role in the African embassy bombings. He was reportedly captured in 2002 (see January 20, 2002- March 20, 2002) and it is suspected the US has handed him over to Egypt. [Human Rights Watch, 6/7/2007]

A federal appeals court rules that “enemy combatant” Ali Saleh Kahlah al-Marri (see December 12, 2001 and February 1, 2007) must be released from military custody. “To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” writes Judge Diana Gribbon Motz, “even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution—and the country.” She adds, “We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.” [New York Times, 6/11/2007] Motz continues, “The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.” Military Commissons Act Does Not Apply - The Military Commissions Act (MCA) (see October 17, 2006) does not apply to al-Marri, the court rules. [Bloomberg, 6/11/2007] Motz writes that the MCA does not apply to al-Marri and the court also rules that the government failed to prove its argument that the Authorization for Use of Military Force, enacted by Congress immediately after the 9/11 attacks (see September 14-18, 2001), gives President Bush the power to detain al-Marri as an enemy combatant. [Associated Press, 6/11/2007] Motz also notes that even though the government says the MCA applies to al-Marri’s case, it did not follow its own guidelines under that law. The MCA requires all such detainees to be granted a Combat Status Review Tribunal (CRST) determination; all Guantanamo-based detainees have been given such a procedure. Al-Marri has not. The government did not suggest the procedure for al-Marri until the day it filed its motion to dismiss al-Marri’s case. [Christian Science Monitor, 6/13/2007] The case, al-Marri v. Wright, was filed against Navy Commander S.L. Wright, who oversees the Charleston military prison that houses al-Marri. [Bloomberg, 6/11/2007]Government Arguments Repudiated - The 2-1 decision of the US Court of Appeals in Richmond was written for the majority by Motz. Al-Marri is the only person held on the US mainland as an enemy combatant, and has been held in isolation for four years (see August 8, 2005). The government has alleged since 2002 that al-Marri was an al-Qaeda sleeper agent sent to the US to commit mass murder and disrupt the US banking system (see June 23, 2003). Motz writes that while al-Marri may well be guilty of serious crimes, the government cannot sidestep the US criminal justice system through military detention. The al-Marri ruling apparently does not apply to enemy combatants and other detainees held without charges or legal access at the facility in Guantanamo Bay, Cuba. The dissenting judge, Henry Hudson, writes that President Bush “had the authority to detain al-Marri as an enemy combatant or belligerent” because “he is the type of stealth warrior used by al-Qaeda to perpetrate terrorist acts against the United States.” Hudson is a Bush appointee. Motz and Judge Roger Gregory, the concurring judge, were appointed by former president Bill Clinton. Motz orders the Pentagon to issue a writ of habeas corpus for al-Marri “within a reasonable period of time.” The Pentagon may release him, hold him as a material witness, or charge him in the civilian court system. Al-Marri “can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely,” she writes, “But military detention of al-Marri must cease.” [New York Times, 6/11/2007; Bloomberg, 6/11/2007]Democracy Vs. 'Police State' - Hafetz says: “We’re pleased the court saw through the government’s stunning position in this case. Had it not, the executive could effectively disappear people by picking up any immigrant in this country, locking them in a military jail, and holding the keys to the courthouse.… This is exactly what separates a country that is democratic and committed to the rule of law from a country that is a police state.” [Christian Science Monitor, 6/13/2007]Justice Department to Challenge Decision - The Justice Department intends to challenge the decision (see June 11, 2007 and Late October-Early November, 2007). The case is expected to reach the Supreme Court, and may help define what authority the government has to indefinitely detain terror suspects and to strip detainees of their right to challenge the legality and conditions of their detention. [Associated Press, 6/11/2007] For the time being, al-Marri will remain in military custody in the Charleston naval brig. [Cincinnati Post, 6/12/2007]

Amnesty International logo. [Source: Amnesty International]The human rights group Amnesty International hails an appeal court decision to release alleged al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri (see June 11, 2007) from military detention. Executive director Larry Cox says in a statement: “Today’s decision strikes down a fundamental premise of the Bush administration’s ill-advised and immoral detention regime: the president’s assertion that he can decide who to detain, and how to detain them, without any judicial review. The Fourth Circuit has affirmed al-Marri’s fundamental human right to challenge his detention. This and other recent developments are an indictment of the Bush administration’s detention regime. It’s now up to Congress to act. They should seize this opportunity to reverse their ill-considered decision last year to strip habeas rights from non-citizens in US custody. This decision restores constitutional habeas rights to those arrested on US soil. However, that is only a tiny subset of the many individuals whose rights have been trampled in the name of the war on terror. Today’s ruling is plain common sense: the president can’t seize civilians in the United States, hold them in military custody, and deny them habeas rights. It’s a sign of how bad things have gotten that the decision comes as such a welcome glimmer of hope.” [US Newswire, 6/11/2007]

Justice Department spokesman Dean Boyd says the administration is “disappointed” in the decision to void Ali Saleh Kahlah al-Marri’s “enemy combatant” status (see June 11, 2007), and will ask that the full appellate court re-hear the case (see Late October-Early November, 2007). “The president has made clear that he intends to use all available tools at his disposal to protect Americans from further al-Qaeda attack, including the capture and detention of al-Qaeda agents who enter our borders,” Boyd says. [Bloomberg, 6/11/2007; US Newswire, 6/11/2007]

A New Yorker article by journalist Seymour Hersh claims that the abuses committed at Abu Ghraib in 2003 were covered up at a high political level in order to protect a clandestine operation called Copper Green where Joint Special Operations Command (JSOC) task forces were given virtually unlimited preapproved authority to capture and interrogate high ranking al-Qaeda figures (see Late 2001-Early 2002). JSOC interrogation techniques were brought to Abu Ghraib prison right when the worst documented abuses began taking place (see (Late August 2003 or September 2003)). One anonymous former senior intelligence official tells Hersh that when photographs of the Abu Ghraib abuses were published, some in the Pentagon and the White House “didn’t think the photographs were that bad” because they put the focus on low ranking soldiers instead of on the secret task force operations. A Pentagon counterterrorism consultant also tells Hersh that the “basic strategy was ‘prosecute the kids in the photographs but protect the big picture.’” [New Yorker, 6/17/2007]

According to Maj. Gen. Antonio Taguba, author of the most probing investigation into Abu Ghraib abuses (see February 26, 2004), many photographs and videos of the abuses have yet to surface publicly. While making his report, Taguba saw “a video of a male American soldier in uniform sodomizing a female detainee.” This video has not even been mentioned in any court proceedings. [New Yorker, 6/17/2007] Journalist Seymour Hersh, who first broke the Abu Ghraib abuse story, also claims that still unreleased photos show “other, more sexual abuse than we knew, sodomy of women prisons by American soldiers, a father and his son forced to do acts together. There was more stuff [than] was made public.” [Raw Story, 6/17/2007] The US Army’s Criminal Investigation Division (CID) continues to hold such photos and videos and declines to release them, citing ongoing criminal investigations and their “extremely sensitive nature.” [New Yorker, 6/17/2007]

Former Reagan Justice Department official and constitutional lawyer Bruce Fein and former civil liberties lawyer Glenn Greenwald applaud the recent ruling requiring the government to overturn alleged al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri’s military detention status (see June 11, 2007). Fein writes that the decision “rebuked President Bush’s frightening claim that the Constitution crowned him with power to pluck every American citizen from his home for indefinite detention without trial on suspicion of preparing for acts of international terrorism.” Other terrorist acts, such as the 1995 Oklahoma City bombings (see 8:35 a.m. - 9:02 a.m. April 19, 1995) and the 1993 World Trade Center bombings (see February 26, 1993), “were tried and punished in civilian courts,” Fein notes, adding that Bush bypassed the USA Patriot Act to classify al-Marri as an enemy combatant, although the Patriot Act “provides a specific method for the government to detain aliens affiliated with terrorist organizations who are believed likely to engage in terrorist activity.” Al-Marri was denied that procedure due to his classification as an enemy combatant. [Washington Times, 6/19/2007] Greenwald writes, “How extraordinary it is—how extraordinarily disturbing it is—that we are even debating these issues at all. Although its ultimate resolution is complicated, the question raised by al-Marri is a clear and simple one: Does the president have the power—and/or should he have it—to arrest individuals on US soil and keep them imprisoned for years and years, indefinitely, without charging them with a crime, allowing them access to lawyers or the outside world, and/or providing a meaningful opportunity to contest the validity of the charges? How can that question not answer itself?… Who would possibly believe that an American president has such powers, and more to the point, what kind of a person would want a president to have such powers? That is one of a handful of powers that this country was founded to prevent.” [Chicago Sun-Times, 6/17/2007]

Alleged al-Qaeda leader Muhammad Rahim al-Afghani is captured in Lahore, Pakistan, by local forces. His arrest will be reported in Pakistani newspapers in early August 2007, but the arrest receives little international attention because al-Afghani is a previously unheard of figure. However, the US government considers him valuable. He is soon transferred to the CIA’s secret prison system and is held there until March 2008 when he will be sent to the US-run Guantanamo prison and officially declared a “high value” prisoner (see Late July 2007-March 14, 2008 and March 14, 2008). Rahim is an Afghan who is said to have been a long-time al-Qaeda planner and facilitator. He is probably highly valued because it is said he served as a translator for Osama bin Laden in recent years, and not many people in recent contact with bin Laden have been caught. [Asian News International, 8/2/2007; Los Angeles Times, 3/15/2008; New York Times, 3/15/2008]

General Thomas Hartmann allegedly interfered with Guantanamo Bay prosecutions. [Source: US Air Force]A new legal adviser to military commission hearings for detainees in Guantanamo Bay, General Thomas Hartmann, interferes with prosecutions, angering lead prosecutor Colonel Morris Davis (see September 29, 2006). Davis says that Hartmann’s position as adviser to the convening authority for the trials means he should stay neutral, but instead Hartmann requests detailed information on pending cases, defines the sequence in which they will be brought, and gets involved in “nano-management.” A Pentagon review partially supports Davis, advising Hartmann that he should “diligently avoid aligning himself with the prosecutorial function so that he can objectively and independently provide cogent legal advice” to the official in charge of supervising the commissions. Hartmann also supports using classified evidence in closed court sessions, which Davis wants to avoid, because it might taint the trials in the eyes of international observers and make it seem that the trials are stacked against defendants. Davis also objects to all elements of the military commissions being put under the Defense Department’s general counsel, as he thinks this could lead to a conflict of interest, and this causes him to resign in October (see October 4, 2007). [Washington Post, 10/20/2007]

In October 2007, the New York Times will report that in July, “after a month-long debate inside the administration, President Bush signed a new executive order authorizing the use of what the administration calls ‘enhanced’ interrogation techniques—the details remain secret—and officials say the CIA again is holding prisoners in ‘black sites’ overseas.” The executive order is said to have been reviewed and approved by Steven Bradbury, head of the Office of Legal Counsel. [New York Times, 10/4/2007] In late 2005 the Justice Department issued a secret memo declaring all aggressive interrogation techniques used by the CIA legal (see Late 2005), so apparently this mostly reconfirms the gist of that earlier ruling. It has been clear since April 2007 that the secret CIA prisons are still operating (see Autumn 2006-Late April 2007). Hours after the new executive order is issued, CIA Director Michael Hayden issues a secret memo to his CIA employees: “The President’s action - along with the Military Commissions Act of 2006 - gives us the legal clarity we have sought. It gives our officers the assurance that they may conduct their essential work in keeping with the laws of the United States.” One senior Bush administration official will later hint that the order does allow sleep deprivation to be used but does not allow exposure to extremes of hot and cold. [MSNBC, 9/13/2007] Intelligence officials also later say that the order not to allow the use of waterboarding. [New York Times, 12/7/2007]

Justice Department official Patrick Philbin testifies in a closed session of the House Intelligence Committee on the subject of interrogation tactics. Philbin testifies that each of the 24 approved interrogation tactics used by US personnel to interrogate terrorist suspects are “plainly lawful.” He notes that laws such as the Military Extraterritorial Jurisdiction Act and the Uniform Code of Military Justice define, to an extent, what is and is not torture, and prohibit excessive interrogation methods that might come under that rubric. He also notes that the US is a signatory to the Convention Against Torture (see October 21, 1994), which defines torture broadly as the intentional infliction of “severe pain or suffering” by anyone acting in an official capacity. He insists the US has done nothing to violate this treaty, nor the War Crimes Act, the Geneva Conventions, or Fifth and the Eighth Amendments to the US Constitution. Although terrorist organizations such as al-Qaeda and “extragovernmental” organizations such as the Taliban do not fall under the protection of the Geneva Conventions, Philbin argues that the US continues to follow its guidelines in its treatment of prisoners from those groups “to the extent consistent with military necessity…” [House Intelligence Committee, 7/14/2007 ] However, in 2004, a classified report by the CIA’s Inspector General concluded that some of the interrogation techniques used by the CIA probably did violate the Convention Against Torture (see May 7, 2004).

President Bush signs Executive Order 13440, which authorizes the CIA to continue using so-called “harsh” interrogation methods against anyone in US custody suspected of being a terrorist, or having knowledge of terrorist activities. The order relies on, and reaffirms, Bush’s classification of “al-Qaeda, Taliban, and associated forces” as “unlawful enemy combatants” who are not covered under the Geneva Conventions. The order also emphasizes that the Military Commissions Act (MCA) (see October 17, 2006) “reaffirms and reinforces the authority of the president to interpret the meaning and application of the Geneva Conventions.” The order does not include “murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments… other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment… any other acts of cruel, inhuman, or degrading treatment or punishment prohibited” by law. It also precludes acts of extreme humiliation “that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, [or] threatening the individual with sexual mutilation, or using the individual as a human shield.” The order also excludes acts that denigrate a detainee’s religion or religious practices. [White House, 7/20/2007] The order does not apply to the Army, which has numerous interrogators operating at Guantanamo and other US detention facilities. [Social Science Research Network, 3/18/2008] CIA Director Michael Hayden says, “We can now focus on our vital work, confident that our mission and authorities are clearly defined.” Administration officials say that because of the order, suspects now in US custody can be moved immediately into the “enhanced interrogation” program. Civil libertarians and human rights advocates are much less enamored of the new order. Human Rights Watch official Tom Malinowski says, “All the order really does is to have the president say, ‘Everything in that other document that I’m not showing you is legal—trust me.’” [Washington Post, 7/21/2007] In January 2009, President Obama will withdraw the order. [Washington Independent, 4/21/2009]

Steven Bradbury, the chief of the Justice Department’s Office of Legal Counsel (OLC), issues a classified memo on what a new interpretation of the Geneva Conventions’ Common Article 3 means for the CIA’s “enhanced interrogation program.” The Bradbury memo, released after months of debate among Bush officials regarding the ramifications of the recent Supreme Court decision extending Geneva protections to enemy combatants in US custody (see June 30, 2006), new legislation following the Court’s decision (see October 17, 2006), and an executive order on interrogations (see July 20, 2007), spells out what interrogation practices the CIA can use. The memo’s existence will not become known until after the 2009 release of four Justice Department torture memos (see April 16, 2009). Michael Ratner of the Center for Constitutional Rights will say upon learning of the memo, “The CIA still seems to want to get authority to interrogate people outside of what would be found to be a violation of the Geneva Conventions and the law.” Ratner will add that the memo raises questions about why the CIA felt it needed expanded authorities for interrogations. “What we don’t know is whether, after Hamdan, that 2007 memo modifies what the CIA is able to do in interrogation techniques,” he will say. “But what’s more interesting is why the CIA thinks it needs to use those interrogation techniques. Who are they interrogating in 2007? Who are they torturing in 2007? Is that they’re nervous about going beyond what OLC has said? These are secret-site people. Who are they? What happened to them?” [Washington Independent, 4/21/2009]

After alleged al-Qaeda leader Muhammad Rahim al-Afghani is captured in Lahore, Pakistan, by local forces in July 2007 (see July 2007), he is soon transferred to a secret CIA prison. He is held in the CIA’s secret prison system until March 14, 2008, when he is transferred to the US-run prison in Guantanamo, Cuba. [Los Angeles Times, 3/15/2008] It is not known when he is captured or handed to the CIA exactly, but a newspaper report on August 2, 2007, indicates he is already in US custody. [Asian News International, 8/2/2007]Secret CIA Prison System Still Operational - It is also not known where he is held exactly. In September 2006, President Bush announced that the CIA’s secret prisons had been emptied, at least temporarily, and the remaining prisoners had been transferred to Guantanamo (see September 6, 2006 and September 2-3, 2006). Since then, there has only been one instance of anyone held in secret CIA custody, and that was Abd al-Hadi al-Iraqi, held by the CIA from autumn 2006 until April 2007 (see Autumn 2006-Late April 2007). Rahim’s custody indicates that the CIA prison system is still being used, although Rahim may be the only prisoner held in it at this time. [Los Angeles Times, 3/15/2008]Is Rahim Interrogated Using Legally Questionable Methods? - In August and November 2007, an unnamed prisoner in a secret CIA prison is forced to stay awake for up to six days straight. This is almost certainly Rahim. The US State Department considers this treatment torture when other countries do it (see August and November 2007).

British Foreign Secretary David Miliband formally asks the Bush administration to release five British citizens from detention at Guantanamo. The administration will release three, but refuse to release Binyam Mohamed (see May-September, 2001 and November 4, 2005) and Shaker Aamer, citing security concerns. [Guardian, 2/5/2009]

An unnamed prisoner held in the CIA’s secret prison system is kept awake for up to six days straight. According to documents made public in 2009, in August 2007, the Justice Department’s Office of Legal Counsel (OLC) gives CIA interrogators permission to keep an unnamed prisoner awake for five days straight. The prisoner is kept awake by being forced to stand with his arms chained above the level of his heart. He is forced to wear diapers, so he can stay continuously chained without bathroom breaks. Then in November 2007, interrogators ask for and receive permission to keep a prisoner awake for another day. A prisoner is kept awake for six days straight. Is It Torture? - According to the Associated Press: “Sleep deprivation beyond 48 hours is known to produce hallucinations. It can reduce resistance to pain, and it makes people suggestible. The State Department regularly lists sleep deprivation as a form of torture in its annual report on human rights abuses. Recent reports have noted Iran, Syria, and Indonesia as engaging in the practice.” The US-based Center for Victims of Torture considers 96 hours (four days) of sleep deprivation to be torture. One director of the organization says: “It’s a primary method that is used around the world because it is effective in breaking people. It is effective because it induces severe harm. It causes people to feel absolutely crazy.” Who Is Interrogated? - The name of the prisoner is blacked out in documents. However, the Associated Press suggests that the most likely candidate by far is alleged al-Qaeda leader Muhammed Rahim al-Afghani. Rahim was arrested not long before, in July 2007 (see July 2007), and he is the only known prisoner in the CIA’s secret prison system at this time (see Late July 2007-March 14, 2008). Furthermore, the US government will later declare him a “high value” detainee, most likely because he is said to have been in contact with Osama bin Laden as a translator and facilitator in recent years (see March 14, 2008). Guidelines Exceeded? - At the time of the prisoner’s sleep deprivation, the Bush administration is reducing its use of severe interrogation techniques. Sleep deprivation is still allowed, but six days without any sleep exceeds existing guidelines. Amrit Singh, an American Civil Liberties Union (ACLU) attorney, says these incidents are “particularly disturbing” because they occur “even after the Supreme Court held that these prisoners were entitled to the protections of the Geneva Conventions and after Congress passed the Detainee Treatment Act to specifically prohibit cruel, inhuman, and degrading treatment.” When the Obama administration takes power in early 2009, it will issue new rules that state all prisoners must be allowed to sleep at least four hours during every 24-hour period. [Associated Press, 8/27/2009]

John Brennan. [Source: PBS]An article in the New Yorker magazine reveals that the CIA interrogations of 9/11 mastermind Khalid Shaikh Mohammed (KSM) were not as reliable as they are typically made out to be. Mohammed was interrogated with methods such as waterboarding that are regarded as torture by many. CIA official John Brennan, former chief of staff for CIA Director George Tenet, acknowledges, “All these methods produced useful information, but there was also a lot that was bogus.” One former top CIA official estimates that “ninety per cent of the information was unreliable.” Cables of Mohammed’s interrogation transcripts sent to higher-ups reportedly were prefaced with the warning that “the detainee has been known to withhold information or deliberately mislead.” [New Yorker, 8/6/2007] For instance, one CIA report of his interrogations was called, “Khalid Shaikh Mohammed’s Threat Reporting—Precious Truths, Surrounded by a Bodyguard of Lies” (see June 16, 2004). [Los Angeles Times, 6/23/2004] Former CIA analyst Bruce Riedel asks, “What are you going to do with KSM in the long run? It’s a very good question. I don’t think anyone has an answer. If you took him to any real American court, I think any judge would say there is no admissible evidence. It would be thrown out.” Senator Carl Levin (D-MI) says, “A guy as dangerous as KSM is, and half the world wonders if they can believe him—is that what we want? Statements that can’t be believed, because people think they rely on torture?” [New Yorker, 8/6/2007] Journalist James Risen wrote in a 2006 book, “According to a well-placed CIA source, [Mohammed] has now recanted some of what he previously told the CIA during his interrogations. That is an enormous setback for the CIA, since [his debriefings] had been considered among the agency’s most important sources of intelligence on al-Qaeda. It is unclear precisely which of his earlier statements [he] has now disavowed, but any recantation by the most important prisoner in the global war on terror must call into question much of what the United States has obtained from other prisoners around the world…” [Risen, 2006, pp. 33] In a 2008 Vanity Fair interview, a former senior CIA official familiar with the interrogation reports on Mohammed will say, “90 percent of it was total f_cking bullsh_t.” A former Pentagon analyst will add: “KSM produced no actionable intelligence. He was trying to tell us how stupid we were.” [Vanity Fair, 12/16/2008]

Ron Wyden. [Source: Public domain / US Congress]Senator Ron Wyden (D-OR) writes to the Justice Department’s acting head of the Office of Legal Counsel (OLC), Steven Bradbury, asking for clarification of the Bush administration’s stance on the Geneva Conventions as they apply to the interrogation of detainees. Wyden notes that President Bush has recently affirmed that the US would observe the conventions’ standards on humane treatment of all prisoners, and asks precisely how the OLC defines the concept of “humane treatment.” Wyden wants to know what circumstances definitions of that term might vary under, and asks the same questions of the term “cruel, inhuman, and degrading treatment.” The principal deputy assistant attorney general, Brian Benczkowski, will answer Wyden’s letter on September 27, 2007 (see September 27, 2007). [US Senate, 8/8/2007 ]

Pentagon officials announce that the number of detainees at the Guantanamo prison has been reduced to about 355. Eighty of these have been cleared for release or transfer. Fourteen are deemed “high value” detainees. The US has been working to reduce the population at Guantanamo as it considers closing the prison. [Washington Post, 8/10/2007]

Hambali, circa 2008. [Source: US Defense Department]Fourteen “high value” detainees held by the US in Guantanamo Bay (see March 9-April 28, 2007) are ruled to be “enemy combatants.” The detainees include 9/11 mastermind Khalid Shaikh Mohammed, 9/11 coordinator Ramzi bin al-Shibh, Jemaah Islamiyah leader Hambali, and al-Qaeda leaders Khallad bin Attash and Abd al-Rahim al-Nashiri. However, a judge had previously ruled that designating a detainee an “enemy combatant” was meaningless and that a person designated an enemy combatant could not be tried under the Military Commissions Act (see June 4, 2007). The Washington Post comments, “It is unclear if these men can be tried at military commissions without a change in the law or a newly designed review.” [Washington Post, 8/10/2007]

The American Civil Liberties Union (ACLU) releases documents that provide evidence of a possible cover-up of Iraqi prisoner abuse by American personnel in 2003. The documents detail US Army Office of Inspector General investigations by three high-ranking Army officials: Major General Barbara Fast, then the top intelligence officer in Iraq (see December 2003); Major General Walter Wojdakowski; and former CENTCOM head Lieutenant General Ricardo Sanchez. The documents suggest that these three flag officers failed to act promptly when informed of the abuses at Abu Ghraib. They also show that an Army investigator found that the conditions of prisoners held in isolation at the Iraqi prison qualified as torture. “These documents make clear that prisoners were abused in US custody not only at Abu Ghraib, but also in other locations in Iraq,” says ACLU official Amrit Singh. “Rather than putting a stop to these abuses, senior officials appear to have turned a blind eye to them.” The documents also show that Major General George Fay (see August 25, 2004) found the conditions of prisoners held in isolation at Abu Ghraib to be torture: “[W]hat was actually being done at Abu Ghraib was they were placing people in their cells naked and they were—those cells they were placing them in, in many instances were unlit. No light whatsoever. And they were like a refrigerator in the wintertime and an oven in the summertime because they had no outside form of ventilation. And you actually had to go outside the building to get to this place they called the ‘hole,’ and were literally placing people into it. So, what they thought was just isolation was actually abuse because it’s—actually in some instances, it was torturous. Because they were putting a naked person into an oven or a naked person into a refrigerator. That qualifies in my opinion as torture. Not just abuse.” Fay also noted in the document that a memo from then-Secretary of Defense Donald Rumsfeld authorizing removal of clothing created a ‘mindset’ in which that kind of humiliation was considered an “acceptable technique.” He noted that even though Rumsfeld later rescinded the memo (see August 25, 2004), not everyone received notice that the interrogation of naked prisoners was no longer permissible. [American Civil Liberties Union, 8/15/2007]

MSNBC runs an inaccurate story about waterboarding and its alleged usefulness. According to an article by Robert Windrem sourced to four senior US officials, only three detainees have been waterboarded: alleged 9/11 mastermind Khalid Shaikh Mohammed, militant training camp facilitator Abu Zubaida, and Jemaah Islamiyah head Hambali. The article contains several claims that will later be proved false: It says that al-Qaeda leader Abd al-Rahim al-Nashiri was not one of three detainees who was waterboarded. [MSNBC, 9/13/2007] However, it will later be generally reported that he was indeed waterboarded, and Vice President Dick Cheney will admit it in 2008. [Washington Times, 12/18/2008] The report claims that Hambali was one of the three detainees who was waterboarded. [MSNBC, 9/13/2007] However, this claim will later fade, with al-Nashiri replacing Hambali as the third detainee subjected to waterboarding. [Washington Times, 12/18/2008] The article also falsely claims that Hambali was subjected to waterbaording because he was “resistant to other interrogation methods.” It adds that he “cried like a baby,” a claim repeated in a prominent subheadline, and “quickly told all he knew.” [MSNBC, 9/13/2007] One former senior intelligence official is quoted as saying that “KSM required, shall we say, re-dipping,” although it will later emerge that KSM was waterboarded 183 times on five separate days (see After March 7, 2003 and April 18, 2009). In addition, the article says, “a total of 13 high value detainees—all of them ranking al-Qaeda operatives—were subjected to ‘enhanced interrogation techniques’ in 2002 through 2004.” [MSNBC, 9/13/2007] However, according to a 2008 interview with Cheney, the US applied enhanced interrogation techniques to 33 detainees. This number appears to relate to a longer period, from 9/11 until late 2008, although cases where enhanced techniques were used after 2004 are not well known. [Washington Times, 12/18/2008]

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